Preview - Elimination of Bias in the Legal Profession and Elimination of Substance Abuse in the Legal Profession

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ELIMINATION OF GENDER BIAS AND SUBSTANCE

ABUSE IN THE LEGAL PROFESSION

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MICHAEL LYNN GABRIEL

ATTORNEY AT LAW

B.S., J.D., M.S.M., DIP.(TAX), LL.M.(TAX)

TABLE OF CONTENTS

I. ELIMINATION OF GENDER BIAS IN THE LEGAL PROFESSION…………3

A. BIAS IN DOMESTIC RELATIONS………………………………………………..8

CHAPTER ONE: PROPERTY DIVISION…………………………………………………..14

CHAPTER TWO: SPOUSAL SUPPORT AND ALIMONY…………………………..30

(1) DETERMINATION OF SUPPORT OR ALIMONY……………………………….45

CHAPTER THREE: CHILD CUSTODY AND SUPPORT……………………………58

(1) CUSTODY CONSIDERATIONS…………………………………………………………..62

(2) CHILD SUPPORT………………………………………………………………………………..80

(3) EFFECT OF EX-SPOUSE�S BANKRUPTCY…………………………………………82

B. CHAPTER FOUR: SEXUAL HARASSMENT IN THE LEGAL PROFESSION………………………………………………………………………………………….88

(1) JUDICIAL DUTY TO AVOID GENDER BIAS AND SEXUAL HARASSMENT……………………………………………………………………………………….96

(2) JUDICIAL HANDLING OF SEXUAL HARASSMENT MATTERS……………………………………………………………………………………………..101

CHAPTER FIVE: DOMESTIC VIOLENCE…………………………………………….107

(1) CIVIL SUITS FOR SPOUSAL BATTERY…………………………………………..112

(2) STALKING LAWS…………………………………………………………………………….117

CHAPTER SIX: GENDER BIAS IN THE CRIMINAL COURT SYSTEM..124

(1) SENTENCING…………………………………………………………………………………..127

(2) REASONS FOR GENDER BASED TREATMENT…………………………….131

II. ELIMINATION OF SUBSTANCE ABUSE IN THE LEGAL PROFESSION……………………………………………………………………………………….138

CHAPTER SEVEN: ALCOHOL ABUSE………………………………………………..144

(1) ALCOHOLISM IN THE LEGAL PROFESSION………………………………160

CHAPTER EIGHT: DRUG ABUSE………………………………………………………163

(1) DRUGS AND CRIME…………………………………………………………………….171

(2) RESPONDING TO DRUG ABUSE………………………………………………….178

CHAPTER NINE: SUBSTANCE ABUSE IN EMPLOYMENT AND TESTING…………………………………………………………………………………………….189

(1) SUBSTANCE ABUSE ON THE JOB……………………………………………….190

(2) DRUG AND ALCOHOL TESTING BY EMPLOYERS…………………….198

CHAPTER TEN: SUBSTANCE ABUSE IN THE LEGAL PROFESSION.209

(1) DUTY TO REPORT SUSPICIONS OF SUBSTANCE ABUSE……………..214

(2) DISCIPLINARY ACTION FOR SUBSTANCE ABUSE……………………….220

(3) EMPLOYEE ASSISTANCE PROGRAMS………………………………………….229

CHAPTER ELEVEN: TREATMENT FOR THE IMPAIRED ATTORNEY.233

(1) TREATMENT PROGRAMS FOR ATTORNEYS……………………………….236

(a) TWELVE STEP PROGRAM………………………………………………………………237

(b) ABA PROPOSAL FOR TREATMENT……………………………………………….245

ELIMINATION OF GENDER BIAS IN THE LEGAL PROFESSION

INTRODUCTION

Gender bias as related to domestic relations, child custody, child support, criminal matters, sexual harassment and domestic violence actions are major concerns for all legal practitioners. Sensitivity on these issues has developed recently in large part in response to the O.J. Simpson murder trial of his former wife Nicole against whom he was once convicted of spousal battery. In response to the growing awareness of spousal abuse many state supreme courts have instituted committees and task forces to render recommendations as to how to remove gender bias from the courts. California’s Judicial Council Advisory Committee on Gender Bias in the Courts issued a 1990 report “Achieving Equal Justice for Women in the Courts”. The Colorado’s Supreme Court Task Force issued a 1990 report “Gender & Justice in the Colorado Courts”. Connecticut’s Legal Services Unit dispenses the 1991 report “The Connecticut Task Force on Gender, Justice and the Courts.” In Florida there is the 1990 “Report of the Florida Gender Bias Study Commission.” In Georgia, there is the 1991 “Gender and Justice of the Courts.” Massachusetts issued in 1989 “Gender Bias Study of the Court system in Massachusetts” published in New England Law Review 745 and 23 Suffolk Univ. Law Review 576. In Minnesota, there is the 1989 “Report of the Minnesota Supreme Court Task Force on Gender Fairness in the Courts”, published in 15 William Mitchell Lawreview 829. The Nevada Supreme Court created a gender bias task force who wrote a report entitled “Justice for Women.” In New Jersey, a task force appointed by its Supreme Court prepared a report entitled “Women in the Law: Changing Roles, Changing Attitudes.” In New York, there is the 1987 “Report of the New York Task Force on Women in the Courts.” In Utah, there is the 1990 “Report of the Task Force on Gender and Justice.” In Washington, there is the 1989 “Gender and Justice in the Courts”. The United States Department of Justice issued a task force report on family violence called “The U. S.Attorney General’s Task Force on Family Violence: Final Report.” The National Center for State Courts wrote a report entitled “The Impact of Domestic Relations Cases on the New Hampshire Superior Court: Analysis and Recommendations.” These are just a few of the judicial and governmental reports relating to the issue of gender bias. There have been many books and private studies and reports by law schools and citizens’ review committees, all documenting some type of dramatic gender bias in the past. The purpose nowadays is to eliminate such gender bias so everyone faces a level playing field. Sometimes the gender bias works for the benefit of women, and at other times it works against them. Not all bias was bad in itself, in fact, in the area of criminal law gender bias worked for the benefit of the women criminal defendants in that studies show that they are charged less often or sentenced less harshly than their male counterparts.

A tricky analysis, for the purpose of determining theexistence of gender based wage discrimination, is the fact it is commonly stated women college graduates earn less than male high school graduates. As with most general statements, this may or may not be true in specific cases. A male high school graduate who goes into pro football will tend to earn more than most women college graduates and most men college graduates as well. Making this argument as support for the belief that women should be paid more is a mistake and hurts the issue of gender equality when you try to compare apples and oranges. The only true analysis is to compare the jobs and pay which women make to the exact same jobs which men engage in. The Equal Pay Act, which requires women be paid the same as men if they are doing the same job as men. The real difference in the pay discrepancy between a divorced husband and a divorced wife is the type of work they are engaged not the fact that they are being paid differently for the same work. The issue of comparable worth has been raised as a basis for paying women more in the general society despite the fact that they may not be doing the same identical work as men. Comparable worth is based upon a belief that when jobs require similar knowledge and competency to be performed then the persons doing them should be paid the same. Under this argument, a secretary with a high school education should be paid the same as a truck driver with a high school education. Comparable worth, as a legitimate doctrine, was considered by the United Supreme Court in County of Washington vs. Gunther (1981) 452 U.S. 161, 101 S.Ct. 2242. The Court held in thiscase that wage discrimination claims are not limited by the Bennett Amendment to Title VII. The Bennett Amendment states; “It shall not be an unlawful employment practice under this subchapter (Title VII) for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or top be paid to employees if such differentiation is authorized by the provisions of section 206(d) of Title 29 (The Equal Pay Act).” The Gunther decision incorporated the four affirmative defenses of the Equal Pay Act to Title VII wage discrimination claims but no longer operated to bar them altogether, such as in Lemon vs. City and County of Denver (1980) 620 F.2d. 228. The Supreme Court specifically limited the extent of its holding in Gunther. It stated that it specifically did not “decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII.” In fact, the Supreme was very clear in stating that its decision was not based on the “controversial concept of comparable worth” which was interpreted by the Court as seeking “increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.” To date, comparable worth is in interesting concept but no wide spread support exists for its implementation. Nonetheless, comparable worth studies have been useful in determining whether wage discrimination is being practiced. American Nurses’ Asso. vs. Illinois (1986) 783 F.2d 716,Power vs. Michigan (1982) 539 F. Supp. 695. Oaks vs. City of Fairhope (1981) 515 F.Supp. 721, AFSCME vs. County of Nassau (1985) 609 F.Supp. 695, AFSCME vs. Washington (1985) 770 F.2d 1401, IUE vs. Westinghouse (1980) 631 F.2d 1094.

In an egalitarian society, a society based upon equal protection of the law, people should be treated equally. Judges have the discretion to sentence people differently based upon the facts of their particular case: the more willful the action, the harsher the punishment. The Nevada Supreme Court’s Gender Bias Task Force in Justice For Women, stated:

“It is for these reasons that in legal disputes between men and women it is of utmost importance that each party understand as thoroughly as possible the position of the other party, The law should be made as clear as it possibly can be and special efforts should be made by all concerned that the parties understand what the law is and what reasonable expectations are for each party.”

There should not be any preconceived notions by the court before sentencing or before the judge even sees or hears the facts of the case. Judicial favoritism based upon perceived ideas and beliefs are what courts and the legal profession are trying to abolish and to do away with, which is always good in the sense that when everyone is treated equally regardless of the results.

A. BIAS IN DOMESTIC RELATIONS

INTRODUCTION

It is in the area of domestic relations that gender bias is most encountered. The field of domestic relations, also referred to as Family Law, covers child custody, child support and most importantly, divorce. One of the most important aspects in any divorce is the economic reality that it forces upon the parties. Both the husband and the wife after the divorce, will be in a different financial and economic situation. Often after the divorce, the ex-husband and the ex-wife will have markedly different amounts of income coming into their respective households. In 1979, for example, 58% of all working women heading family households were concentrated in the service and clerical areas. In a 1981 study, U.S. Dept. of Labor, The Female-Male Earnings Gap: A Review of Employment and Earnings Issues, often cited by feminists, it was determined that women in these jobs were only earning $61 compared to every $100 earned by men in general. In reality, that is a distorted bias study because it is comparing men doing all different types of work than that of all women. There is no comparison based upon identical work. A more important aspect that those in the legal profession must bear in mind is simply that the women themselves were, in that study, engaged in low-paying jobs, regardless of whether it was through their desire to do those jobs or their inability to get a higher-paying job is irrelevant. It is the amount of money the spouses have coming in following their divorce which is important in the determination of propertydivision, child custody, child support and alimony.

One of the functions of any divorce court is to divide the property in the marital estate, also called the community or family estate, award child custody and child support, and to determine if either spouse should be entitled to alimony (spousal support as it is called in some states) from the other spouse. Today states do not require proof of fault in order to get a divorce although in some states it can still be alleged in the petition. All states have adopted some form of no-fault divorce based upon irreconcilable differences. Until relatively recently it used to be that a spouse could only get a divorce upon finding some degree of fault against the other spouse, and once the fault was determined the judge had the discretion to divide the marital property in any fashion in order to punish the spouse who caused the fault and therefore destroyed the marriage.

With fault not being an issue or grounds for a divorce, in most states, the community property is usually divided equally in accordance with the family law of the state in question. The no-fault laws for divorce grounds have also been carried over, in most states for alimony payments. Most states do not consider fault of a spouse in making alimony awards. For some states, however, fault may still be used or considered for in making property divisions or alimony orders. In Nevada, for instance, which permits no-fault divorce is unclear on the issue of considering fault as a factor for awarding alimony. In Heim vs. Heim (1988) 104 Nev. 605, the Nevada Supreme court stated:

“Although Nevada has made incompatibility a ground for divorce and has eliminated the fault concept in establishing grounds for divorce, it has neglected to deal with the question of whether fault should play a role in deciding questions relating to alimony.

Nevada is not alone on this regard; and when the question has been presented to the courts in other states, some have held that in the absence of legislative change corresponding to the enactment of no-fault grounds for divorce, fault should continue to be a factor in awarding alimony or property distribution. Other courts have held that permitting fault to be considered in these situations would be incompatible with the no-fault statutes. See e.g., Annotation, Fault in Consideration of Alimony Award 86 A.L.R. 3d 1117 (1978); Does No-Fault Divorce Portend No-fault Alimony 34 Pitt. L. Rev. 486 (1973)…. we note, without deciding the point, that the past relations and conduct of the parties might be legitimately considered under the legislative direction that the courts may regard to the “respective merits of the parties.”

Fault, in property distributions or alimony awards, is in some states, highly important. Fault may result in higher or lower alimony awards for the supported spouse. In addition, property divisions may, in states using fault as a factor, could likewise be increased or decreased as either punishment or an ward for good behavior on the part of the paying spouse.

Following or in conjunction with the property division are the awards for child support and child custody. Following the divorce, usually the custodial parent, which is most times the mother of the children, must go out and get a job. The reason for this is simply economic necessity. It really just comes down to the fact that most people work to earn money in order to survive, not particularly because they enjoy doing it. A recent survey that came out showed that most people do not like the job they are doing, but do it because they need the money. As a result, a parent who has childrenmust nonetheless support those children and therefore must work. Even if child support is being paid, often it is not enough to guarantee that the person receiving the child support will be able to stay at home and care for the children and do nothing else.

Social mores have changed quite a bit in the last thirty years. Throughout the 1950’s, it was considered very improper for people to get divorces, and therefore it was understood under the mores that usually the wife would stay home and tend the children. If there was a divorce, the wife would normally get the children and therefore would receive enough alimony and support so she could continue to stay home and raise the children. Nowadays with the advent of the Women’s Rights Movement, it is understood that women have the right to go out and get jobs in the real world and that if they choose to raise children at home, that is their choice. However, it is considered wrong by many people to require the

father to pay lifelong or permanent alimony for eighteen years so the ex-wife can stay home and simply raise the children.

It was shown in a 1994 study, that 20% of all single family homes involving children are headed by the father. In homes that are headed by a single father, no one makes the argument that the former spouse, i.e. the mother, should be paying permanent support to the father so that he can stay home and raise the children until they reach eighteen years of age. It is understood today that both spouses have a duty to raise their children and to pay for their support and therefore a job in most instances is considered proper by the custodial parent as much as the non-custodial parent. Merelybecause a custodial parent works does not mean that the custodial parent is earning enough money alone to support the family. It is required that both parents to work to support their children. The Census Bureau, for instance, in its report “Child Support and Alimony: 1983” concluded that 53% of single mothers failed to receive the court order child support payments from for their children. As such, if a parent does not support the child that parent could be subjected to criminally prosecution.

Every state now has enacted no-fault divorce laws. The purpose of no-fault divorce is just, as the name implies, to provide the means for a person to get a divorce without destroying the character and reputation of the other spouse. Prior to no-fault, when the grounds for divorce did not exist and the couple were just unhappy together, unless one spouse agreed to have his or her character falsely slandered in court, the couple could not get a divorce. There are two types of no-fault states.

The first type of no-fault state is one that permits a divorce only on the grounds of irreconcilable differences, irretrievable breakdown or incompatibility. The jurisdictions, which have adopted this form of no-fault divorce, are: Arizona, California, Colorado, District of Columbia, Florida, Hawaii, Iowa, Kentucky Michigan, Missouri, Montana, Nebraska, Nevada, Oregon, Virginia, Washington and Wyoming. In such jurisdictions, no evidence of fault is admitted into evidence in the court in any fashion. As such, neither spouse can accuse the other spouse of adultery, name a correspondent or attempt, in any way, to blackenthe other spouse’s name. The second type of no-fault state is one which permits no-fault an additional fault grounds for a divorce. A person is permitted the option, in such states, to seek a divorce using either fault grounds or no-fault grounds. Fault grounds, are usually used, in those states which still consider fault as a factor in making alimony or child custody decisions.

Besides the spouses, themselves, anyone having an interest in the marital estate may also be brought into the divorce as a party. These parties, do not necessarily have to appear in the divorce proceeding but if their interests are adversely affected by it, they will have the right to appear and defend their position. In the same vein, either spouse may sue third parties and bring them before the divorce court for the determination of the marital’s estate interest. For example, one spouse may sue the business partners of the other spouse for a determination if any of their business should be considered a marital asset. Additionally, some states, such as Iowa, will appoint an attorney to represent the children during their parents’ custody battles. Furthermore, some jurisdictions, such as Delaware, District of Columbia, Georgia, Hawaii, Indiana, Kentucky, Massachusetts, Michigan, nebraska, Washington, West Virginia, Wisconsin and Wyoming require a public officer to be named in an uncontested divorce. The reason behind this requirement is to protect the family and assure that no fraud is occurring or will be practiced. This requirement was enacted in response to assertions by various women’s rights groups that women were often taken advantage of and defrauded by their ex-husbands in uncontested divorces.

CHAPTER ONE

PROPERTY DIVISION

Probably the touchiest area in any type of divorce is the division of property. Virtually all states have some type of law that says in the division of marital property it goes equally among the spouses. Sometimes fault comes into play, but usually courts do not divide property that either spouse owned prior to the marriage or was acquired by gift, devise or by bequest. As stated, above, some states still employ the fault concept in making property distributions and alimony or support wards even though the divorce itself may be granted without a finding of fault. In dividing property, a court must first determine what property is actually part of the community or family estate along with the value of such property. This is often the hardest part in property evaluation. It has been consistently asserted that, in the situation of a business asset that the non-participating spouse in that business is at a severe disadvantage. Potential injustices may occur in such instances where the spouse controlling the business has the power to conceal or camouflage assets. In such instances, the non-business spouse is unaware of what the community property is and its value. It is not uncommon, unfortunately, for one spouse to transfer property out of the state in an effort to conceal it from the other spouse. in the past such conduct has been generally overlooked by the court, but that is changing. In 1995, forinstance, a doctor in Kern County, California was criminal charged in Federal Court for transferring property out of California in violation of a state court’s order that no property be transferred until the conclusion of the divorce case. The doctor transferred $1.6 million to his father in India in violation of the family court’s order. The money was subsequently returned following the federal charges being filed. The fact that a Federal Court would permit a criminal complaint being filed to punish the wilful transfer of property in violation of a state court’s order is proof of the changing view on property distribution.

In 1983, the National Conference of Commissioners on Uniform state Laws created the Uniform Marital Property Act (UMPA). The purpose behind the creation of the UMPA was to settle the law in a chaotic field and to provide an equal and uniform procedure for the division of marital property. The UMPA was is the first to uniformly create a national standard for property division in a divorce rather than fifty individual standards which often lead to forum shopping and conflicting jurisdictional claims. The UMPA adopts as its standard the position of community property states that property acquired during the marriage as the result of contributions and efforts of both spouse is equally owned. The difference between the UMPA and community property laws is that its provisions governing management and control, survivorship titling and treatment of retirement plans. The UMPA’s provisions for the above are based upon equitable distribution concepts and ratherthan hard fast laws as do the community property states. One of the major departures of the UMPA from community property laws is in the treatment of appreciation of one spouse’s separate property. The UMPA has created an active appreciation rule, section 14(b), wherein if substantial appreciation of one spouse’s separate property occurs as the result for the substantial efforts of the other spouse, without compensation therefore, it becomes marital property. Likewise, income generated from individual property including dividends, rent and interest is marital property as well under section 4. The effect of the UMPA is increase the marital estate and to treat income during the marriage as marital property regardless of its source. To date, the only state which has adopted the UMPA is Wisconsin although it has been proposed in at least another dozen legislatures.

Prior to the conscious raising activities of the Women’s Movement, fraud or misrepresentation in property settlements were often overlooked and ignored by the courts. One case, in particular was widely used to highlight the indifference of courts to the plight of women in divorce cases. In Fisher vs. Wirth (1971) 38.A.D. 2d 611, 326 N.Y.S. 308 a couple divorced after nearly forty years of marriage. For the last twenty years of the marriage, the parties had agreed that the husband’s salary was to be invested for their retirement. The husband held title in the invested property in his own name. At the divorce, the wife sought a constructive trust on the property to prevent unjust enrichment. The courtdenied the constructive trust finding that no fraud had occurred on the husband’s part. In denying the wife’s petition, the court held that while there

“may be a moral judgment that can be made on the basis of the respondent’s conduct and the imperfectly expressed intention of some future benefit to appellant, but that is not enough

to set the court in motion.”

The court’s decision did not recognize any right of the wife to have acquired an interest in the property under even the basis equitable theory of detrimental reliance. There is little given the facts of the case that the wife had detrimentally reliance on the statements of the husband that the investment would be used for their “latter days”. As a result of that promise, despite not being more specific, the wife stayed in the marriage and did not prepare for her own latter years. That is a classic example of detrimental reliance which the court could have so found. Nor did the court consider the equitable theory of an implied contract at law. The court’s decision resulted in the wife, after forty years of marriage, not having any interest in the investments for which her husband had made despite his earlier assurances that they were for the benefit of each.

Today, the trend in family law is permit both a married and unmarried woman to assert implied contracts and equitable interest in property acquired, in part, through their efforts. The classic case on “palimony” is the California case, Marvin vs. Marvin (1976) 18 Cal.3d 660. The Marvin case permits an unmarriedperson to assert an implied contract in property acquired by the other person during the relationship if the parties had agreed that such property would belong to both or if the person earning the property promised to take care of the other. Where a woman has given up a promising career in order to be become a companion for a man on the promise that he will take care of her, many courts will find impose an equitable interest in the man’s property under the theory of an implied contract at law. If Fisher, supra, were to be brought today in California, the courts probably would find the constructive trust earlier denied in New York.

Under the common law, property belonged to the spouse in whose name it was titled. Title, therefore, became the dispositive factor in property division during a divorce. A wife’s property award, under the common law, was therefore based upon ownership of the property rather than any promise of sharing by the husband. Vassel vs. Vassel (1972) 336 N.Y.S. 2d 887. The common law concept for property division was adopted by forty states. The remaining states adopted the community property system based upon Spanish law or the Napoleonic Code which gave each spouse an equal interest in property acquired during a marriage except for that property acquired by gift devise or bequest.

One of the noticeable effects of the Women’s Movement has been the easing of the common law’s division of property based strictly upon title and consideration of “equitable distribution” in making an award. All states now, by either case law or statute, requiretheir judges to make fair and equitable distributions of marital property. Col. Rev. Stat. Sec 14-10-113, Ill. Stat.Ann ch.40 sec. 503, Md.Cts & Jud. Proc. Ann., sec. 3-65-05(b)(1), Pa.Const. Stat. Ann sec 23-401, Rothman vs. Rothman (1974) 65 N.J. 219, Parrot vs. Parrot (1982) 292 S.E. 2d 182. In fact, even New York which denied a marital interest in Fisher, supra would be compelled to do so today under N.Y. Dom. Rel. Law. sec 236 Part B 5d(6) which requires the court to consider such factors as the duration of the marriage; any equitable claim to, interest in or direct or indirect contribution to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career and career potential of the other party; and any other factor which the court shall expressly find to be just and proper.

Many states have either by statute or case law created a presumption for equal division of marital property. Ark. Stat. Ann sec. 34-1214, Wis. Stat. Ann. sec 767.255. The Guidelines for Property Division of the Domestic Relations Division of the Common Please Court of Cuyohoga County, Ohio (1981) states:

“The rational supporting the presumption of equal division is that marriage is a voluntary association with implied rights, duties and contributions,… as long as each party chose to remain in the relationship, he or she is deemed to have accepted the other’s contributions as more or less equal to his/her own; and that therefore the property generated by the marriage should therefore be equally divided between the parties upon termination of the relationship.

At times, equity may requires a less than equal division.

The requirement of equal division is a rebuttable rule. When departing from equal division, the court should articulate the reasoning behind its decision in order to facilitate understanding by the parties and appellate review.

California, in 1974, revised its domestic relations law by adopting the 1974 Family Law Act. The major effects of the Act were that it removed fault as a requirement for a divorce or as a factor for property division. Prior to the Act, judges could divide community property in any proportion that it deemed just and fault often played an important part in the judicial division of the property. A common saying among California divorce attorneys, prior to 1974, was that the wife would get one half of the community property and the court would then divide the husband’s half. Today, California community property is divided equally and fault is not a factor.

It has been suggested and proposed that to lessen gender bias in property settlements courts should adopt procedure that will

make it harder for spouses to conceal assets or hide their value. These recommendations have the effect of being directed primarily against the husbands because usually it is the husbands, by virtue of their control over the business estate of the family estate, who are in the best position to conceal such assets from the court. In accordance with this, it is suggested that courts and legislatures impose mandatory disclosure and inventorying of all community and marital assets. In addition, there should be severe criminal or contempt sanctions enforced for all willful refusals to cooperate with mandatory disclosure provisions.

The most common problem in a divorce is how to divide the marital assets acquired during the marriage. Often the courts will give the house to the wife because she has the children, and the business, that has an equal amount of value, to the husband because they look at the dollar value as if everything was sold right away. Again, when you do that, the house does not yield income and the wife is forced to look to other sources and means to get the money to survive. The husband, even though he doesn’t own the house, owns the business, which in fact produces income. Most people don’t own

businesses. Most people are just employees, so if you have a husband working for the local phone company, he has a job and from that job he will have to pay support. Usually, the husband will lose the house in the divorce. Usually, when the house is to be sold and the proceeds divided, the wife will have custody of the house until it is sold and divided.

Property of a marriage is divided in accordance with the individual state laws. Some states are referred to as common law states and other states are known as community property states. A common law state permits each spouse to acquire property, in their own names, during the marriage. The earnings of each spouse remains the sole property of the spouse earning it. A community property state, on the other hand, is one which holds that all property acquired during a marriage, except property acquired by gift, devise or bequest, is owned equally by each spouse. Community property states are Arizona, California, Idaho, Louisiana, NewMexico, Texas and Washington. In the divorce, the Court will divide the marital property in accordance with its state laws. If the parties had entered into a valid marital agreement directing how the property will be distributed in the event of a divorce, the Court will enforce that agreement, if it does not violate state law or public policy. A Court’s property division order is only valid for property located within the state. A Court can not award or divide property located in another state. To get around this problem, a Court may make an inequitable distribution of property in the state and allow the other spouse to keep all of the out of state property. Given the fact that no-fault divorce is now available, in some form, in all states, the only contestable issues really remaining to be decided by the Court is property division, child custody and support. Marital property, not divided during the divorce, may be divided later by bringing the matter before the Court. This usually happens when property was concealed from the other spouse or occasionally was mistakenly overlooked.

The current trend is to have property acquired, during a marriage, equitably divided regardless of title has been codified by thirteen states: Alaska, Colorado, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania, Utah, Wyoming Virginia, New Mexico, Texas and Washington. In addition, several states have specifically enacted legislation requiring their Courts to consider a homemaker’s, usually the wife’s, contribution towards the other spouse’s ability to acquire property in making a divisionof assets. Colorado Rev. Stat. 14-10-113, Illinois S.H. Ann. Ch.40 Sec. 503(c), Maryland Ann. Code Repl. Vol. Sec. 3-6A-05(b)(1), Massachusetts Ann. Law Ch. 208 Sec. 34, Montana Code Ann. Sec. 40-4-202, Pennsylvania Stat. Supp. 23 Sec. 402. Pennsylvania invalidated the common law sex-based presumptions of ownership of marital property under the cases DiFlorido vs. DiFlorido (1975) 331 A.2d 174 and Butler vs. Butler (1975) A.2d 477.

Debts are usually divided by the Court in accordance to whether the debts are his, hers or theirs. A joint debt is a debt owed by both spouses of which was created for the benefit of the marriage. A separate debt is one that was incurred solely for the benefit of just one spouse. A debt that affected or benefitted only one spouse will be found to be that spouse’s sole debt. Community property states hold that all of the community property can be used to pay a community property debt regardless of who incurred the debt. A community property debt is one that was incurred to benefit the community estate. Examples of community property debts are the bill incurred for putting a new roof on the house or repairing the family car which are community property assets. When a debt is held to be a community debt, then all of the community property is, likewise, held to be available to pay it. In a community property state, the separate property of the spouse, not incurring the debt, can not be attached or used to pay the separate property debts of the other spouse.

A married couple, who no longer wish to live together but whodo not want to get a divorce, can enter into a written separation agreement that does everything but acknowledge that the marriage is over. A separation agreement can deal with spousal support, property settlement and even child custody. The parties may agree to use a separation agreement rather than a divorce for a variety of reasons such as the fact that some religions do not recognize divorce, the effect on the children or financial concerns. Many courts will not enforce a separation agreement

if the separation has already occurred or occurs soon after the agreement is executed. Some states, such as New Jersey, specifically do not permit their use. Most states, however, do permit separation agreements to some extent and in accordance with their state law. While not openly rejecting separation agreements, North Carolina nd Oklahoma, in particular. do not favor them and narrowly construe them.

A separation agreement is, for all intents and purposes, just a special contract between the spouses. It is governed by the same rules as any other contract. There must be a meeting of the minds as to what the agreement is to accomplish and how it is to be structured to reach the desired result. In addition, there must be legal consideration given by each spouse under the agreement. Legal consideration is the promise to do or to refrain from doing something that the person has a legal right to do or not to do. Without legal consideration being given by each party to a contract, the contract is void from the beginning. The Court hasthe power to later, amend or invalidate a separation agreement, if it found that the separation agreement violates state law or is otherwise unfair. The Court will find a separation agreement unfair if one spouse concealed assets or misrepresented facts to the other spouse, if a spouse did not adequate representation or if one spouse took unfair advantage of the other. Most separation agreements deal in part with spousal support. Spousal support waiver provisions are usually enforced if the recipient received a fair property settlement in the separation agreement. There are, however,several states such as new York, New Jersey and Illinois for example, that do not permit a spouse to waive support in separation agreements. Some states, such as Indiana, North Carolina and West Virginia will only rarely enforce such a waiver provision. The reason behind some states’ refusal to enforce a support waiver is the fact that all states have laws requiring each spouse to support the other spouse. All states view it as being against their public policy to permit as person to be in need while married to a spouse able to render support. Therefore, some states will not permit a spouse to wave support during the marriage or does so reluctantly even when a separation agreement is employed.

Besides property division in regular marriages, Courts often find themselves having to divide property in common law marriages.,There are still many states which recognize the doctrine of common law marriages. Under this doctrine, a man and wife living together, as such, for a fixed number of years, usuallyfive, will be treated as through a valid marriage has occurred. In such instances, a divorce is needed to terminate their relationship and the property acquired by the couple during the term of their relationship will be divided in accordance with that state’s divorce law. A recent trial, on point, is Maglica vs. Maglica. The couple, though not married, lived together for twenty years. During that time Anthony Maglica formed a flashlight business that grew to a value of $300 million. Upon termination of their relationship, Mr. Maglica claimed the entire business belonged to him. Mrs. Maglica sued alleging a claim for a breach of fiduciary duty in that the couple had an oral agreement that she had an interest in the business. At trial, the jury awarded Mrs. Maglica $84 million. This case touched both common law marriages and the oral implied contract, also known as palimony, as discussed in the Marvin case supra.

The thorniest issue in any divorce and one in which the issue of gender bias comes into play is determining how to divide an asset that is really not divisible. An example of this issue is the situation where one of the spouses is a professional, with a degree in law or a medicine, architecture, etc, which permits that spouse to go out and practice the profession. The other spouse, in comparison, who is usually the wife, will not have a professional degree and cannot go out and practice any profession simply because she had once been married to a lawyer, doctor, architect etc. How professional license is treated in a divorce is an area of on goingdevelopment. Under the common law, a professional was not an asset to be divided or considered in a divorce. Today that view is changing. Many states, now tend to treat the earning capacity by the licensed spouse as a community asset, and will order the spouse to pay a percentage of that income for the rest of the spouse’s professional career to his former spouse. While such may be considered an emerging view, is still not the majority view. Most states will, in a divorce, value the office on a fair market value basis, as if the practice was sold immediately, as if the spouse had quit practice. If, for example, the spouses have an professional office or practice that is worth $200,000 as fair market value, many states will treat $100,000 as belonging to the divorcing spouse and divide it that way, but all future earnings would belong to the licensed spouse.

A common horror story, is where someone has worked to support their spouse through medical school. law school, etc. and as soon as the spouse obtained the degree he or she filed for divorce. The inevitable question is what interest or rights does the non-degreed spouse have in the other spouse’s degree? Many states have now adopted the policy to avoid such biases by requiring a spouse who has been supported by the other spouse, to give the equivalent support to the other spouse. If, for example, a wife worked to put her husband through medical school for five years, the husband would be required to give the equivalent support of whatever it was to put the wife through medical school for five years if she wantedto, or to furnish her some other type of equivalent support for the next five years.

An additional concern in property division is the effect of spousal support. Under the common law, a husband was almost always required to support a wife, even after a divorce, until the wife remarried. A wife, almost never was required to support an ex-husband. Such black letter law has virtually disappeared. Today, spousal support can be awarded to either a husband or a wife but it is not longer required to be awarded. Instead, the view toady is that alimony or spousal support should only be awarded to the extent necessary for the receiving spouse to learn the skills necessary to go forth and earn a living without such alimony. It is, however, recognized that because of age or disability, a spousal might be permanent alimony or spousal support because he or she will never be able to be fully independent. A very real problem in gender bias, as recognized by everyone, is what happens when a long-term marriage falls apart and one spouse has a better earning capacity than the other. In the situation where both spouses are working and earning similar amounts of money, there probably will not be an aware for spousal support because they each have similar amounts of income. As long as the people are in an equal living situation, there will usually not be an issue of gender bias. Where for example, both spouses are living in poverty, they are equally suffering and thus without gender bias. Where, however, after a 40-years plus marriage one spouse, usually the wife, becomesdestitute and the other one is able to lead a fairly decent life, there is a duty to support. In this situation, courts will consider spousal obligations in making property divisions and thus may make impose orders or make property distributions so as to assure or guarantee that support payments to the other spouse will be made.

CHAPTER TWO

SPOUSAL SUPPORT AND ALIMONY

INTRODUCTION

One of the most controversial areas of gender bias in the law is the award by a court of spousal support or alimony. In no other area of law is there such a discernable difference between how men and women are treated as in the overall awards of spousal support and alimony. Prior to the Women’s Liberation Movement beginning in the late 1960’s, permanent alimony was viewed simply as a result of social mores and served as a form of punishment against the paying spouse (usually the husband) for getting or causing a divorce. Under the common law, the payment of support to the former spouse continued virtually forever regardless of how many years she was to receive it. Many states actually had laws that forbade the award of alimony to ex-husbands unless the ex-husband was disabled. It took a 1978 United States Supreme Court decision in the case Orr vs. Orr 440 U.S. 268 to make laws banning alimony awards to men as an unconstitutional denial of equal protection. Even before the Orr decision the states were beginning by statute or case law to ban gender based discrimination for alimony. Henderson vs, Henderson (1974) 327 A.2d 60, Holmes vs. Holmes (1978) (Ct. Common Pleas) 127 P.L.J. 196. Many movies (usually comedies), made throughout the 1930’s to the 1970’s, depicted ex-husbands’ efforts to get their ex-wives married so as to cut off the alimony payments that hadbeen on-going for years and years. The common law view was that even a wife in a short term marriage was entitled to lifetime alimony. The basis for the common law view is founded directly upon the institutionalized gender bias of the Victorian Age. Up until the 1960’s, family law in the United States reflected the societal view that women were primarily homemakers and that they should work outside the home. Therefore, under this view, husbands were required to take care of and support their wives. Divorce, for that reason, was socially unacceptable. Alimony awards wee therefore premised with the dual function of both punishing the spouse for causing the dissolution of the marriage and to compensate the wife for the time spent in the marriage. Generally, under the common law, the wife was entitled to lifetime alimony unless the wife caused the dissolution of the marriage usually through unfaithfulness or adultery. As stated above, ex-husbands, in most states could not petition for alimony awards from their ex-wives unless they were disabled, a requirement not imposed on ex-wives.

In the movies, the ex-wife was often portrayed as having no intention of getting remarried because she was free, had a good strong income in the form of alimony and therefore had no financial reason for remarriage. In the old divorce decrees, the right to receive alimony was usually terminated upon either getting re-married or moving in with someone of the opposite sex. By such provisions in the divorce decrees, states wanted to make sure that if the ex-wife was living with another man, the spousal supportstopped. The reason for such provisions were not only to cut off unfair alimony payments by the ex-husband but also to assure that the ex-wife did not choose in live in sin and therefore weaken the moral fabric of society. Until relatively, it was often stated that society had a duty to preserve the sanctity of marriage and for that reason it was deliberately made difficult for couples to get a marriage and alimony awards were viewed as means to punish the spouse for causing the divorce.

To grant a divorce, a court need only have jurisdiction over the plaintiff spouse. A divorce action is a “rem” action and the “res”, the marriage, follows each spouse. Having jurisdiction over the plaintiff spouse gives the court jurisdiction to adjudicate the marital rights of both spouses which includes granting a divorce. The United States Supreme Court in Williams vs. Williams 317 U.S.287 held that the domicile of the plaintiff spouse is sufficient for the court to grant a divorce even though the court does not have personam jurisdiction over the other spouse. In such instances, the full faith and credit clause requires every other state to recognize the effects of the divorce. In addition, even when a spouse obtained an ex parte divorce, such as moving to another state to get the divorce, that does not stop the ex-spouse from seeking alimony in another state. Throughout the 1960’s, for example, women would come to Reno, Nevada, called the divorce capital of the United States, because of Nevada’s easy divorce laws, stay for six weeks and then get a divorce. Nevada did nothave jurisdiction to award alimony because the ex-husband was not before the court. Following the grant of the divorce, the ex-wife could move back to her home state and seek alimony and property division there. In Vanderbilt vs. Vanderbilt 354 U.S. 116, the United States Supreme Court upheld a New York law which permitted an ex-spouse to seek alimony despite the fact that an ex parte divorce was obtained in another state. Not all states, however, allow their courts to award alimony after a judgment of divorce was rendered in another state. In addition, some states that will allow post ex parte divorce alimony will not grant it to a non resident ex-spouse, usually the wife. The treatment of alimony in the ex parte divorce situation is very important because the plaintiff-spouse’s, who is usually the ex-wife, could be seriously jeopardized by getting a divorce in such a manner.

The Women’s Rights Movement brought about a change in views towards marriage and the idea of alimony awards as punishment. The Women’s Movement began to first step towards the elimination of institutionalized and de facto gender bias in the legal profession. As a result, no-fault divorce is now available in virtually every state. In addition, it is no longer considered a women’s right to receive alimony forever even if she had only been married for just a couple of months. The modern view has developed, in contrast to the earlier common law view, that women owe a duty to themselves to look out for themselves, and therefore be able to earn their own living. As a result of this, courts have backed away from the ideaof permanent alimony, and in its place have substituted formulas and procedures by which they will require one spouse to pay the training and education expenses for the other spouse to be able to support himself.

Under the common law, a husband had a duty to support his wife but the wife had no duty to support her husband. Today, all states have enacted laws which impose the duty upon each spouse to care and support the other spouse while they are married. Such support is defined as providing the necessities of life. Such laws require that once it is proven to a Court by a spouse or interested party, such as a relative or government entity, that the spouse is unable to provide for his or her necessities of life, the Court will require the other spouse to provide them to the extent possible. A spouse is not expected to suffer deprivation or to be forced into bankruptcy as the result of supporting the other spouse. In practice, it is easier for a woman to obtain a support order than it is for a man. Generally, support for a man is only ordered when he is disabled, to the extent that he is unable to care for himself. In the property division of a marital estate, the Court will first divide the debts into his, hers or theirs.

Under the common law, the husband was totally liable for payment of the wife’s debts whereas conversely she was not liable for her husband’s debts. This difference led to the development of two separate sets governing the property rights and distributions between a husband and wife based upon their sexes. Today, eachspouse is responsible only for their own debts and those created jointly with the other spouse. On a joint credit card, for example, both spouses are liable for the outstanding balance no matter what was purchased or by which spouse. However, the outstanding balance on a spouse’s individual credit card, one only in that spouse’s name, is owed only by that spouse. The only exception to this treatment is when credit charges were incurred for the necessities of life purchased for the other spouse or, in some states, for were incurred to benefit the marital estate. In such an event, the other spouse will be required to reimburse the costs incurred in providing those benefits. In community property states, the community property in the marriage is liable for the community property debts of either spouse. A community property debt is defined as any debt incurred by either spouse during the marriage

on which the creditor looked to the community property estate for repayment or which was incurred to benefit the community property estate or arose as an obligation from the community estate. The separate property of the spouses remained as discussed above.

A judicial property division is not limited to divorce alone. Property division can also occur in a legal separation in which the same rules will apply. A legal separation is virtually identical to a divorce proceeding except for the fact that the marriage is not ended. The effect of a legal separation is that the parties:

1. remain legally separated;

2. neither spouse is responsible for the debts of the other spouse after the date of the court’s order.

3. child custody and support is determined by the court.

4. the court divided the property of the estate in accordance with state law unless a valid separation agreement was entered by the parties. Inn such an event, the court adopts the settlement agreement as its order and divides the property as covered therein.

The usual reason for doing a legal separation rather than a divorce is that the couple no longer wish to live together by either for religious or financial reasons do not want to obtain a divorce. A legal separation does not later prevent the parties from obtaining a divorce. In a legal separation, the actual separation of the couple is a requirement for the court to grant a legal separation. If the couple does not separate, then a property settlement portion of the court’s order mat still be enforced but the other elements of a legal separation will not be given effect. To do otherwise, would be against public policy because it result in a Court being used to redefine the marital relationship for a married couple living together in ways that it is not permitted to do.

As part of a legal separation many couples decide for themselves how their property will be divided through the sue of a separation agreement which defines their rights in each other’s property along with property acquired during the marriage. A separation agreement is used, as the name implies, when the parties intend to separate and live permanently apart. All states permitthe use of separation agreements if used in a legal separation. However, not all states will enforce a property settlement agreement that is entered without the intent to seek a legal separation. In other words, if the couple simply decides to split the property and live apart, some states will not automatically adopt the property settlement agreement because they deem such an agreement to violate public policy and promote the dissolution of families. as discussed in Chapter One. If a valid separation agreement has been executed and one spouse subsequently moves to another state, it would be prudent to verify if the separation agreement violates the laws of the new state. Each state will enforce a separation agreement validly created in another state but usually only to the extent that it does not violate its own laws. this has caused a great deal of litigation, over the years over the enforceability of separation agreements across state lines when not adopted as part of a legal separation.

In any property division, it is important to know whether the division will be made under community property law or the common law. A minority of states: Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington and Wisconsin and, to an extent, Oklahoma have based their family law under the Spanish law or the Napoleonic Code which hold that all property acquired during a marriage, except property acquired by gift, devise or bequest, to be jointly and equally owned by both spouses. The earnings of both spouses, in a community property state, for their work performedduring the marriage along with their retirement benefits earned during the marriage are also considered to be equally owned by the spouses.

Since community property is held to be owned by each of the spouses equally, it is given special tax treatment upon the death of a spouse. Under federal tax law, when one spouse dies the tax basis of both halves of the community property will be increased, stepped-up, to fair market value. This is an great tax advantage upon a death of a spouse but is of no consequence in a divorce. A tax advantage that community property has in a divorce is that there is no tax liability incurred with one spouse being awarded his or her interest in the community property. Because of the tax implications in holding property as community property, it is important that attorneys and judges properly characterize the status of the property in the marital estate as either community property in nature or common law depending on the applicable law. A couple who moves from a community property state into a common law state may have the property divided in accordance to the community property law of the state in which it was acquired and not the state in which they currently reside or where the divorce or separation action was brought.

The Respondent can also file for divorce in the same action as the Petitioner. In such a case, even if the Petitioner subsequently drops the divorce, it will still go forward because of the Respondent’s petition. A more complicated situation arises whenboth spouses file for divorce separately and in different states. In such an instance, both states may have authority and jurisdiction to grant the divorce. This can cause a great deal of problems in deciding how the divorce and its related issues are handled. Many states have adopted the Uniform Divorce Act which determines which state should handle a divorce when the spouses seek it in different states. Under this act, jurisdiction is based upon the respective parties’ contacts with the state where the children, if any, live and where the property of the marriage, if any, is located although a court may make an order for the division of property located out of the state if the Court has jurisdiction over both of the spouses.

Spousal support is also referred to as alimony. It is support paid in cash or property from one spouse to the other to cover the necessities of life. Spousal support is paid separate and apart from any property settlement and is for recipient spouse’s continued care, maintenance and support. Under the common law, a divorced woman was entitled to receive alimony for the rest of her life regardless of the length of marriage with the only proviso that she not remarry. Likewise, the amount of alimony which a wife received under the common law was to be sufficient to keep her in the manner and style to which she had become accustomed. In contrast, under the common law, a husband was not permitted to receive alimony under any circumstances. It took a United States Supreme Court case, Orr vs. Orr (1979) 440 U.S. 268 to finallyresolve the issue of whether a man can receive spousal support in a divorce. The Court held:

“Even if sex were a reliable proxy for need and even if the institution of marriage did not discriminate against women, these factors would still not ‘adequately satisfy the salient features of’ Alabama’s statutory scheme

*****

There is no reason therefore to use sex as a proxy with need. Needy males could be helped along with needy females with little if any additional burden on the State.”

The common law rule which was iron-clad absolutely forbade a husband from receiving spousal support under any conditions or circumstances. Gradually, some states began to recognize the inequity of this position and passed laws permitting a husband to receive some spousal support under strict conditions. However, it was not until the Supreme Court’s Orr decision that the right was extended to all men. Toady, all states have laws that permit men to receive spousal support on the same conditions as women. While the laws permit spousal support for men., in practice Courts tend to award it only when the man is disabled or os otherwise unable to foreseeably earn a living. The Courts, as a whole, still evaluate more intently the need of men seeking support than is done for women seeking support. Even before the U.S. Supreme Court’s decision in Orr, states had begun to invalidate the gender based laws which imposed different requirements for men and women for theaward of spousal support, Henderson vs. Henderson (1974) 327 A.2d 60. As an off-shoot of the Women’s Rights Movement, men are, today, permitted to receive alimony today if need is shown. Furthermore, most states now only award alimony for the length of time that the Court considers reasonable for the recipient spouse to acquire the ability to earn a living. In making its support order, the Court looks to the property available to each spouse, their respective ages, and the recipient spouse’s need and ability to earn in the future.

The modern view of spousal support has sparked considerable criticism from the feminist movement. It is argued that older women, who were never trained to earn their own living, find themselves with little or no income after a divorce. These women, it is argued, are unreasonably expected to fend for themselves by a certain date when they never had an opportunity to learn or acquire the skills and experience needed to do so., A Court may make temporary support orders while the divorce is pending. Because the support order is temporary, the Court can make its decision without a full consideration of the merits of the issue. A Court will base its temporary support order on the financial statement presented by the Petitioner. The spousal support order will be based on what the Court determines is needed for the maintenance of the spouse during the divorce. Often temporary support is more important that the final support order because the spouse requesting the temporary support may have a lot of assets but verylittle cash. In such an event, the spouse needs temporary support while those assets are converted into cash. When that is doe, the spouse may no longer need additional spousal support. In some states, the temporary support that is awarded is taken into consideration when dividing the property of the marriage. In such states, the paying spouse may receive a credit against the amount of property to be awarded to the recipient spouse for the temporary spousal support previously paid.

The Court has wide discretion in directing how spousal support payments are to be made. Support payments are usually awarded monthly but, if the circumstances warrant it, then the Court may order the payments to be made in limp sums or even quarterly. A lump sum or quarterly payment of support is usually ordered when the payor spouse receives income all at one time. An example of a spouse who may be ordered to pay support in a lump sum may be a farmer who is paid only when his crops are sold. A Court may also order the payor spouse to place sufficient assets into a trust and make the spousal support payments from the income of the trust.

Insurance can also be considered by the Court as an element of spousal support. A Court could order the payor spouse, as part of the support award, to pay for the recipient spouse’s health, disability and/or life insurance. The Often will often order that health, car and home insurance be maintained in the recipient spouse during the divorce. Courts tend to split on the ordering of life insurance to be paid because upon the death of the recipientspouse the support obligation ends. However, if there are minor children of the marriage, life insurance on the recipient spouse may be order to protect those children as an additional form of child support. Court ordered insurance is treated the same as any other support obligation. The failure of the payor spouse to furnish and maintain the insurance exposes the payor spouse to contempt charges.

Support orders are fully enforceable Court orders. The willful failure to comply with Court ordered support obligations is held to be contempt against the Court. The payor spouse may be fine and/or jailed for failure to make the support payments if there is no legitimate excuse for the non-payment. In addition to seeking enforcement through contempt proceedings, the recipient spouse may execute on the support order in the same manner as any other court judgment. Property of the payor spouse may be attached and sold to pay the support obligations. In addition, the wages of the payor spouse amy be garnished (seized) to apply to the support payments. Many state shave adopted the Uniform Reciprocal Enforcement of Support Act. The states adopting this Act have agreed to enforce the support orders of the Court of the other signatory states. This Act is intended to prevent spouses, order to pay support, from evading and avoiding their support obligations by moving to another state. In fact, it is now a federal crime to do so.

Usually a Court will award attorney fees and costs to the recipient spouse who has had to take the payor spouse to Court inorder to enforce the spousal support award. In addition, there is legislation that will permit recipient spouses to attach the payor spouse’s tax refund check. Such attachment is permitted by government agencies as reimbursement for financial assistance rendered to a recipient spouse because the payor spouse ‘s failure to make court ordered support payments. A recipient spouse, who has not received payment, should report the payor spouse to the local district attorney who may seek enforcement through a criminal proceeding. Attorneys should be careful when representing a recipient spouse on this issue. The attorney, under the canons of Professional responsibility can not threaten criminal action in order to achieve a civil settlement. Therefore, while the client may threaten the non-paying spouse with going to the District Attorney, the attorney can only to proceed with civil collection action if the support payments are not resumed.

While a divorce may be granted without the respondent being in the Court, spousal support will not be awarded unless the respondent has been validly served and is subject to the Court’s jurisdiction. A Court’s jurisdiction over a person, rather than property, is called “personam jurisdiction” and requires that the person either be a resident of the state or have significant contacts with it. All but two states, Maryland and vermont, treat divorce and spousal support as separate matters. The majority of states will grant a divorce even though they do not have personam jurisdiction over the respondent spouse sufficient to make asupport order. It is possible for a spouse to file a for a divorce in one state and the other spouse to seek spousal support in another. The determining factor on spousal support is which state has personam jurisdiction over the spouse from whom the support award is sought.

Some states still take fault, i.e. the grounds for awarding a divorce, into consideration in awarding spousal support. The rationale for doing so is that the spouse seeking the support should not be rewarded for doing wrong. Likewise, under this rationale, a spouse who did wrong should be punished for causing the divorce. When fault is at issue, spousal support that would otherwise be awardable may be reduced or denied altogether. In states which have straight no-fault divorce laws, spousal support is awarded regardless of fault on the part of the parties.

All states view spousal support awards as being modifiable whenever changed circumstances warrant it. The following states have statutes which specifically state that spousal support awards are always modifiable:

END OF SAMPLE VIEW

Even in those states which do not have specific laws stating that support is modifiable, the Courts usually insert clauses in their final decrees reserving jurisdiction to modify spousal support asthe circumstances change. Either party may seek modification of a spousal support award for changed circumstances. The payor spouse may seek to have payments reduced while the recipient may later seek to have them increased.

The most common reasons for a change in spousal support are the remarriage of the recipient spouse or the recipient spouse getting a better paying job. Some states, such as California, Colorado and Illinois, have laws which terminate support immediately upon the recipient spouse’s remarriage. A change in the financial status of the payor spouse may also justify the modifying of the support award. Likewise, an increase in assets or a job by the recipient spouse may reduce the need for spousal support. Modification of spousal support is usually made by filing a motion before the Court where the divorce was granted. However, if the recipient has moved, the suit may be filed where the recipient spouse lives but the law employed will usually be the law of the original state.

1. DETERMINATION OF SUPPORT OR ALIMONY

Today, both spouses may seek an award of alimony from the other. Alimony or spousal support, as it is called in some states is common. The United States Census figures for 1980 showed that fourteen percent of all divorces alimony was awarded. The National Commission on the Observance of The International Women’s Year…To Form a More Perfect Union 102-09 (1976) conducted a poll of 1522 women in 1975 regarding alimony. The poll found that fourteenpercent of the divorced worm were awarded alimony but only 46% received that spousal support regularly. In individual states, the percentage of divorces for which alimony is granted is can be substantially higher. In 1974, for instance, Florida courts awarded alimony in 24.4% of all divorce cases. As a form of alimony, Florida awarded the family home to the ex-wife received the 72.4% of the time, the husband received it 7.9% of the time and rest of the time it was sold and the proceeds divided among the -parties. Generally, however, it is women who still receive most of the alimony awards. The reason behind awarding women more alimony than men results from the economic realities of society. Men tend to earn thirty percent more than women. The discrepancy in overall earning capacity between men and women is based upon the fact that men tend to have higher education and work at higher paying jobs. While men earn more money in the higher paid jobs then also tend to die earlier than women because of those jobs. In 1970, for example, the life expectancy of steel workers, almost entirely men, was 60 years of age when the overall life expectancy of men was 65 years of age. In contrast, for the homemaker in 1970, the life expectancy was nearly 71 years of age. As a result of the fact that men tend to earn more than women even though they tend to die sooner because of it, they usually are not awarded alimony. There are exceptions, where the husband stays at home and takes care of the kids or does not earn as much of as the wife. In such instances, the husband will receive alimony. Statistics, however, should that nearly 90%nationwide of all alimony and spousal support awards go to women. For this reason, this section is devoted to the gender bias factors used in making alimony and spousal support awards to the ex-wife.

A few decades ago, women were not expected to work outside the home and therefore an ex-husband was expected to support the ex-wife until her remarriage. Society’s view of that earlier time was that every woman should be married and a divorced woman was expected to seek remarriage. In the 1950’s a divorced woman was viewed very negatively by society. Even in Hollywood at the time, a divorce could ruin a woman’s screen career. Many Hollywood stars had moral clauses in their contracts which permitted their termination from the studios if their conduct offended the public morals such as getting a divorce. Today, the support award to an ex-wife is primarily designed to train her to be able to go forth an earn a living. The argument raised against such temporary alimony is that it is sometimes unfair against an older divorcee from a long term marriage. Statistics show that older women, no matter how much training they may receive, may not be able to get into the job market. Many of the older women receiving divorces have never worked a day in their lives having ben homemakers throughout their adult lives. many homemakers have only a high school education earned one, two or three decades ago. For such older homemakers, it may simply be unreasonable to expect them to acquire the skills to be earn the ability to maintain their pre-divorce life style. Under the prior common law view, a husband wasrequired through alimony payments to keep the ex-wife in the style in which ha had made accustomed. Today, the style of living for the ex-wife is a minor consideration for the courts. The courts now determine what amount of alimony and support award would be sufficient to allow the ex-wife to get some type of job training.

In Ohio, a five year study was undertaken to evaluate the effects of ex-wives life styles when they were able to get one or more years of training. It was found that such women were able to enter into the labor and get better paying jobs within two years. The MLS Mature Women’s Cohort: A Socioeconomic Overview, Ohio State University (1978). This study supported the long held belief that it is cost effective for both the ex-husband and society as well for ex-wives to receive training to support themselves.

This modern view was first touted by the Women’s Movement as a means of forcing women to take responsibility for their life and therefore liberating themselves from control by men. Toady, many feminist organizations state the general denial of permanent alimony has actually worked to the detriment of many women. Such women organizations now assert that for a court to put limitations on the amount or time for which the ex-wife will receive support can force her into a poverty situation. In Nevada, a survey of 25% of its judges showed they rarely or never awarded permanent alimony after a long-term marriage. Another 44% of these judges stated that they sometimes gave permanent alimony. The Nevada Supreme Court in Baker vs. Baker (1990) 106 Nev. 412 held that permanent or lump sumalimony is appropriate when the spouse paying the alimony (usually the ex-husband) has a much shorter life expectancy than the spouse receiving it (usually the ex-wife).

It is understood that divorced women, as a rule, do not have very marketable job skills. Most divorced women basically can take jobs only in the clerical or low-skill areas, simply because they are not trained for anything else. Being a housewife does not necessarily train someone to be a fork lift operator. That does not mean by any stretch of the imagination, that women cannot be trained to be a fork lift operator. This is where the judges come into play and they have to figure out what type of support and how long to render it. A study for spousal support in California covering the 1970’s showed that long term divorcees suffered as a result of the divorce. Such California ex-wives with a pre-divorce family income of between $20,000 and $30,000 had a median income of only $6,300 following the divorce. “The Alimony Myth: Does No-Fault Divorce Make a Difference.” Family Law Quarterly, Vol. 14, No.3 (1980). If the ex-wife has been a housewife for ten years and likes doing it, she may not want to go out and get a job, but would rather continue on as a housewife and raise the children. In that situation, however, the ex-husband may not want to support two households and pay to have the ex-wife stay at home. That view is supported by many feminists as well who do not believe that women should be staying at home to raise children. Where the wife has been a homemaker for many years, such as thirty or forty years, noamount of training will usually be able to put her in the job market because of the time factor. If the woman wants to go to school and become a lawyer, for example, and has no college education, she would be looking at four years of college and three years of law school. If she is fifty two years of age, at the time of the divorce, she will be sixty years of age by the time she’s an attorney and she may have many problems in getting a job. The age of the ex-wife works against her even though there are age discrimination acts. While someone could not discriminate against her for age alone, the bottom line is she wouldn’t have the experience of someone the same age. A woman of the age of fifty or sixty years with a new degree and no experience will be competing against younger people with probably a lot of job related experience. As a practical matter there is discrimination to be expected on that aspect. Judges should bear that in mind and should be awarding permanent alimony where the ex-wife will never be expected to be able to earn a decent living. She may have to earn some money. If she does, the ex-husband will still have to pay support but not as much. All states permit the award of permanent alimony when the facts justify it on a case by case basis. In the case In re Marriage of Branther (1977) 67 Cal.App.3d 416, the court recognized that permanent alimony may be required in certain circumstances on a case by case basis:

“In those cases in which the decision of the parties that the women becomes the homemaker, the marriage is of substantial duration, and at separation the wife is to all intents and purposes unemployable, the husband simply has to face up to the fact that his support responsibilities are going to be of extended duration–perhaps for life. This has nothing to do with feminism, sexism, male chauvinism or any other social ideology. It is ordinary common sense, basic decency and simple justice.”

There should be some understanding that training alone will never suffice in all circumstances. Judges need to understand the economic realties present in society. Specifically, Judges need to realize that spouses who were homemakers for many years may never be able to fully support themselves because of their age. In such instances, the award of permanent spousal support is proper.

A judge is willing to give spousal support for four or five years almost routinely, but beyond that, the judge usually rules that at the end of four to five years the wife can find some way to earn income. The ex-wife can become a secretary or whatever by the end of that time. That part of it is true. The ex-wife can get training, but can she get a job. That argument has been used several times, sometimes quite successfully but sometimes only moderately so. While an ex-wife can go out and become a secretary, if she in her 50’s and starting out against someone in her 20’s, it doesn’t always work. The national statistics show that 74% of all divorced women with children under 6 years of age are in the work force. As a practical matter, most women who do have children do work, and the idea of paying support so the ex-wife and mother can stay at home and raise the children is really the exception. In most courts, the ex-husband will be required to pay support, butthe wife is going to be required because of the level of support the ex-husband is going to pay, to go out and get a job. The reality of the situation is that most people do not earn enough money to support two families. In any event that income the ex-husband makes has got to be used to support both his new family if he remarries and the children from the former marriage, in addition to any support to be paid to the ex-spouse. The ex-husband usually does not earn enough to fully maintain two separate households unless he is a wealthy person. Many states, such as California and Nevada, have minimum support scales for child support. In these cases the husband or father is expected to pay these minimum amounts, period. These payments come right off the top of the husband’s net earnings. If the husband does not make enough money, he must bite the bullet and live at a reduced standard so as to make the payments. The real issue arises on spousal support. How much should a judge order an ex-husband to give the ex-wife in order for her to survive? The average divorce does not involve wealthy people. The average man and wife earn $40,000 per year together. Often the wife has never worked and now the ex-husband has to support the ex-wife and their two children. If the ex-husband re-marries he is going to have another wife to support and maybe children from that family. Most states will have a schedule that will guarantee minimum payments for the children of the first marriage, but as for paying spousal support for the ex-wife, that will usually be based upon a few years in order for her to acquirethe skills necessary to earn a living. If ex-wife is older, the husband may have to pay alimony for a long period of time. There are no set standards because there are none. The Social Security Administration estimated in 1975, that the average full-time housewife did work that had the value of $7,500 per year. That was a 1975 figure, so nowadays that figure would be up to around $20,000 per year in today’s money. In a family situation, for example, assume one spouse (usually the wife) who stays home, and the other spouse is earning $30,000 per year. Using the estimate of the Social Security Administration, the at home spouse is contributing $20,000 per year of income at home toward the family income and is, in essence, earning 40% of the total support to the family by what is being done at home.

The need for alimony is often exacerbated if there are minor children in the marriage. A Census Bureau study, “Child Support and Alimony: 1983” showed that fifty three percent of single mothers failed to receive support for their children. The lack of child support from the father, whether court ordered or not, has the obvious effect of increasing the monetary concerns of the mother.

The study went on to compare the standard of living of divorced men and women in California. it was determined that the standard of living for divorced men increased by 42% following a divorce whereas the standard of living for divorced women actually decreased by up to 72%. In 1979, for instance, 58% of all women heading family households worked in the clerical and service area.In 1985, such jobs were paying $61 for every $100 earned by men. The payment for the jobs are based upon the availability of people willing to work for that pay. Women without sufficient job training simply lack the ability to get, as a whole, better paying jobs.

A study that was conducted in the late 1970’s showed that only

23.8% of all alimony awards were permanent (paid for an indefinite period of time). Over 76% were rehabilitative alimony which is paid for a period of time to allow the spouse to be re-trained and earn a skill to support herself. In the cases where such rehabilitative alimony was granted, women with children received higher alimony that women without children and non-working ex-wives received more alimony than working ex-wives. All of this is rather interesting when it is considered that the purpose of the alimony is for training. In this case, they tend to determine how much alimony is awarded based on the income the spouse has coming in. Most interesting is the fact they give more alimony to working women with children when, as a concept, child support is supposed to be awarded separate from alimony. It is not supposed to be related to alimony. Regardless of whether or not alimony is awarded, child support is supposed to be awarded separately to the custodial parent. To give more alimony simply because there are children is to give child support twice. Nonetheless, that happens and that is a form of reverse gender bias. When considering spousal support, gender bias comes into play because most judges do not understand the economic reality of a divorce. In making support awards, judgesshould consider the earning capacity of the ex-wife and her ability to actually earn sufficient training to get a job, given her age. While such is very important and it can be hard to do. Most judges have taken the view to be politically correct they only have to order a set amount of income for a period of time, and then let the ex-spouse pull herself up by the bootstraps and get a job. If they use anything other than that, they risk the criticism of the liberal left that they are being patronizing. In reality that is the wrong consideration because judges should always look out for the best interest of the people who are before the court. It is wrong to go in with pre-conceived notions that they should never award permanent alimony because there are circumstances where it should be awarded. In most long-term marriages, it may, in fact, be the only way to go, because the spouse (usually the wife who needs the support) cannot realistically earn a decent living, regardless of the amount of training. Judges should be aware of that, and if they are not, they may be unintentionally creating de facto gender bias in the opposite direction by assuming that everyone is equal, when in these situations they may not be equal. It is very easy for a judge to be politically correct, and rule that in five years anyone, including am ex-wife without a marketable skill, can earn a degree and be self-sufficient by that may not be true and therefore work an hardship on the ex-wife. In many states, the amount of alimony or spousal support which a spouse receives is based in art on the property division. The equitable distributionof property, as now followed in most states, was, for example, codified in the Wisconsin Marital Property Act which reformed its common law based family law. The Wisconsin Marital Property Act: Highlights of the Wisconsin Experience in Developing a Model For Comprehensive Common-Law Reform, 1 Wisconsin Women’s Journal 5.

Collection of alimony can be a problem. A court order does not always guarantee payment. According to the Statistical Abstracts of the United States, 1985, only forty percent of the divorced women actually received their court ordered alimony.

CHAPTER THREE

CHILD CUSTODY AND SUPPORT

INTRODUCTION

One of the obvious instances of gender bias occurs in the award of child custody. Unlike most forms of gender bias, in child custody the discrimination is often practiced against the father. Until very recently, many states had laws that automatically awarded child custody to the mother unless the father could prove that she was unfit. The view that women are naturally the better parent, while no longer written into the law, is still widely pervasive. Today, all states have statutes that require that child custody wards be made only on the best interests of the child. In practice, however, the presumption still remains that it is in the best interest of the child to be with the mother. Now while Judges still tend to be paternalistic in their view of child custody, that can work towards the detriment of certain women. Some judges view non-traditional life styles of a woman as being able to override their traditional belief that the children belong with the mother. In particular, some judges believe that it is in the bet interests of a child to be raised by a fit, straight father or grandparent rather than a lesbian. Other judges feel that while a lesbian could raise a daughter it would be in the best interests to have the boy raised by a father or grandparent who is fit to do so. This has been an ongoing debate. Only a few years ago, society would not have considered awarding child custody to homosexual parent overthat of a straight and otherwise fit parent. Gay liberation has, however, has resulted laws being enacted in some states that require homosexuals be treated on the same basis as straight person sin the awards of child custody. The effects of baby being raised by a homosexual parent has never been fully documented. As such, in many states, judges still retain the right to consider sexual preference on the part of a parent in making child custody awards.

There is no reason to believe that men are inherently unfit to raise their children. In fact, up to the 20th Century, child custody was usually awarded to the father.Father’s Rights and Feminism: The Maternal Presumption Revisited, 1 Harv. Women’s L.J. 107. The earlier common law, presumed that fathers, given their management and control of family assets and the ability to earn a living, were in the best position to properly raise and provide for the children. The New Hampshire Supreme Court stated the common law presumption for child custody in State vs. Richardson (1980) 40 N.H. 272:

“It is a well-settled doctrine of common law that the father is entitled to the custody of minor children… that he is bound for their maintenance and nurture, and he has the corresponding right to their obedience and their services.

The view that men were by the very nature of their economic position, better suited to raise minor children had throughout the 19th Century been the rule rather than today, the exception. The New York Court of Appeals held in People ex. rel. Nickerson (1837) 19 Wend 16:

“In this country, the hopes of the child in respect to its education and further advancement, is mainly dependent on the father, for this he toils through life, the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent abruption of this relationship would not only tend to wither these motives but necessarily in time, alienate the father’s natural affections…”

The Court went on to further find that no evidence had been presented to show that the best interests of the child would be served, “pecuniary or otherwise, to commit custody to the mother.” Under the common law, the father’s obligation to support his children only existed for as long as he had custody. Children were viewed, in the 19th century, as virtual chattels of the parents having custody and the obligation to support the children followed the custodial parent alone. A father without custody was generally presumed not to have a duty to support the children. Brow vs. Brightman (1883) 137 Mass. 187.

Beginning in the late 19th century, was the development of the “Tender Years Doctrine” which held that young children were better off with their mothers. The Tender Years Presumption in Child Custody Disputes 15 J. Fam.L 423. The Tender Years Doctrine held sway in custody awards throughout the 1970’s until replaced with the broader concept, “Best Interests of the Child”. The “Best Interests” doctrine requires that custody of children should be given to the parent or other person which would have the best effect on the child. Only Utah, still has the tender years doctrine codified in statute although the Utah Supreme Court rejected itsuse in Pusey vs. Pusey (1986) 728 P.2d. 117 and applied the best interests test. Over thirty five states have expressly rejected the tender years doctrine whereas the remaining states apply the tender years doctrine in conjunction with the best interests test when all other factors are equal.

The facts regarding child custody and the impact on American society are alarming, Family Facts. As of 1995, forty percent of all first time marriages end in divorce, as compared to only 6% in 1960. The United States has led the world in the percent of fatherless families, since 1986, when it passed Sweden. In 1960, 5 million children lived in single-parent families whereas in 1993 that number was 18 million. The number of children in such families grew as well from 63.7 million in 1960 to 66.9 million in 1993. A study of living arrangements with children of single parents showed that only 3.5% lived with their father. Forty percent of single parent children had not seen their fathers for over a year and over 50% of such children had never been in their father’s home.

As bad as the above statistics appear, they bode even worse for society as large. Seventy-two percent of adolescent murderers grew up without fathers. Sixty percent of all rapists likewise grew up without fathers. Seventy percent of all children in juvenile reform institutions were from single parent homes. behavioral studies show that children exhibiting violent behavior are eleven times more likely to live in a single parent home. Children from low earning two parent homes out achieve children from high incomesingle parent homes by nearly two to one. In 1960, 5.3% of all live births were to unwed mothers. As of 1993, the percent of live births to single mothers reached 30% and is expected to reach 40% by the year 2000.

I. CUSTODY CONSIDERATIONS

Family law is the generic term for the body of law dealing with the personal relationships of families and the rights of all members therein. Family law is the most litigated field in civil law. As much as sixty percent 960%) of all civil filings involve some area of Family law. The most commonly contested area of family Law us, not unexpectedly, child custody and support. Only relatively recently have states eliminated fault as a requirement for obtaining a divorce. As such, the major areas of contention left in a divorce are property division, spousal support, child custody and child support. With recent influx of women into the non-traditional work force, the traditional nuclear family has been reduced. As there are more working mothers appearing in divorce courts, states have begun to rethink their traditional notions of always awarding child custody to the mothers. Many states have enacted laws requiring joint child custody and even mandate that their Courts presume, until proven otherwise, that fathers are equal with mothers in ability to rear their children. All of these actions have served to increase litigation and further fill court dockets.

In every state, the Court having jurisdiction over the childand one of the parents is the proper forum for bringing an action for child custody and support. In making its decision, the Court is guided by the tenet of what is in the best interest of the child. While the parents may agree among themselves the issues of child custody and support, the Court is not bound by any such agreement. The Court will not award child custody to any parent whom it feels is unfit. The Court looks at many factors when it makes its decision as to what is in the best interest of the child. Some of the basic factors which the Court weighs in making its decision are:

1. the age, health and sex of the child;

2. the age, health and sex of each parent;

3. the home environment of each parent;

4. the character of each parent;

5. any criminal record of any parent; and

6. the financial ability of each parent to support a child.

To aid in its determination, the Court may appoint a social worker to investigate the parents and to make a recommendation on custody. The traditional view, still held by many judges, is that the mother should always have custody. This belief was based upon the fact that since mothers did not work outside the home that they were best able to raise the children as long as they received adequate support. Since many mothers now work full time, many states now recognize that the traditional reason for awarding custody to the mother no longer exists. In such states, fathers are given theopportunity to seek child custody on an ostensibly equal footing with the mothers.

Children can not select the parent with whom custody will be awarded. Nevertheless, most courts will, at least, listen to their preference and try to understand their reason for it. The child’s preference is one factor but not the only one upon which a Court will base its decision. The Court is always to be guided by the desire to do that which is in the best interest of the child. When everything is taken into consideration, the preference of the child may be an important factor if not the deciding one. The Court will consider the weight to be given to the child’s preference. A younger child’s desire will naturally be given less weight than that of an older teenager.

Generally, most courts feel that it is in the best interests of a child to be raised in a two parent home. Thus, if the non-custodial parent remarries and seeks custody, the court may consider that to be an important enough change as to merit a modification of its custody order. The Bureau of Census, U.S. Dept. of Commerce’s, report on Characteristics of Households and Persons

Receiving Selected Non-Cash Benefits :1980 found that families headed by single women had a median income of $10,830 as compared to $18,775 for single men and married couples who had a median income of $23,180. This translates into a belief that on a financial basis alone a father is usually in a better financial position to provide for the child, especially if remarried. Theimportance of a remarriage increases if the step-parent is a homemaker and the custodial parent has a full-time job. The Court may then feel that the homemaking step-parent may be able to spend more quality time, both caring and nurturing, the child, Webb vs. Webb (1981) 7 FLR 3051, Blnosky vs. Blnosky (1980) 405 N.E.2d 1112. If the child is not of school age and the custodial parent must put the child in day care while working, the Court could decide that the better environment would be with the other parent who could raise the child at home. One area of gender bias is that when a non-custodial mother remarries, the step-father’s presence in the home is generally not considered sufficient to merit a change in custody because the step-father is usually not going to stay at home and be the primary caregiver to the child. Simmons vs. Simmons (1978) 576 P.2d 589.

It was not so long ago that a parent living with another

another person of the opposite sex was automatically denied child custody. Such conduct was perceived to be immoral and created a harmful environment in which to raise children, Simmons vs. Simmons supra. As a result of the Women’s Movement, today’s view of such conduct is not so well-defined. In Gould vs. Gould (1984) 118 Wis.2d 493, the Court refused to take custody away from a divorced mother living with a man and give it to the remarried father unless it could be shown that the mother’s relationship was harmful to the child. The court is required to do what is in the best interest of the child but that often is a subjective determination. As such,the Court is often called upon to determine if a custodial parent’s home life poses moral or psychological harm to the child. many Courts, particularly in California, will not consider such a relationship will itself be destructive to the normal development of the child. Courts in other states view the matter differently and have even gone so far as to order the unmarried partner of a non-custodial parent out of the home when the child visits. It is all dependent on the development of the child and the effect such a relationship will have on the child’s normal development.

If the Court finds that neither parent is capable of providing for the needs of the child, the child may be placed into a foster home until the custodial parent, or parent, are found to be able to properly care for the child. In an extreme case, the Court may terminate parental rights and place the child up for adoption. Such interference with a parent’s parental rights is extreme and exercised only when the welfare of the child is in jeopardy.

Joint custody exists in two parts: physical custody which determines the amount of time the child depends with each parent and legal custody which requires the parents to jointly make decisions about the child’s education, health and overall welfare. Joint custody is used predominantly by a couple who feel that it affords the best means to provide the most stable environment in which to raise the children. The concept of joint custody has been gaining ground in the last few years although not without opposition. Some states, such as California, now require thatpreference be given to joint custody petitions unless it is in the best interests of the child not to do so. The traditional form of custody is sole legal and physical custody to just one parent. In the traditional custody arrangement, the non-custodial parent, usually the father, has no input into the manner in which his child is raised. this arrangement has long been recognized as both weakening the parental bond and fostering juvenile delinquency. Joint custody has been touted as a means of maintaining stability in the child’s life following the parents’ divorce. Joint custody works best when the parents agree to work together for the sake of their children and establish a joint goal for which they strive to attain. In the situation where one or both parents are unable to work together, the court will terminate the joint custody and award one parent the sole and legal custody. It is usually very difficult to terminate joint custody and the court is not apt to award sole physical custody to the non-cooperative spouse without good reason.

The child custody award is never final. The Court always retains the power to change the custody order when the best interest of the child warrant it. For example, if it can be demonstrate that a step-parent poses a risk to the child such as by child abuse or drug abuse, then the court will change child custody. in fact, many states now will terminate child custody if a step-parent has a pattern of spousal abuse because it is considered to be an unhealthy atmosphere to raise children. The problem with this scenario is that it is heavily dependent on theelusive element of proof. It has become almost axiomatic in child,custody cases for one parent to accuse the other or a step-parent or friend of child abuse or drug abuse in an effort to gain child custody. The problem that results is that it often slanders innocent people, crowds the legal systems with frivolous complaints and delays the processing of legitimate complaints. Even so, there is complete agreement that all necessary steps must be taken to protect the child from such dangers. Towards that end, when an unwholesome environment is expected, a parent should amass all the proof possible and pursue relief through the child protective services of the child’s county of residence, Because a child custody award is never final, it can and should be modified when the facts call for it. The original custody order was made with certain facts in mind. As the facts change upon which the custody order was made then modification of the custody order may be warranted.

The most common modification of a child custody award is a change resulting from the custodial parent’s wish to move out of state. Generally, the move will adversely affect the visitation rights of the non-custodial parent and the court must consider the effects of the proposed move on all parties. In decision whether to permit the custodial parent to take the children out of state, the court will consider, among other factors:

1. the age of the child;

2. the effect on the child in being away from the custodial parent;

3. the effect of the move on the visitation rights of the non- custodial parent;

4. the closeness of the relationship with the non-custodial

parent; and

5. whether the move is just to deny visitation to the non- custodial parent.

Moving out of state is a common ground for modifying custody order. In such an event, the courts often permit the custodial parent to take the child out of the state but gives the non-custodial parent one or more months of custody during the summer and alternate holidays.

Just as the child custody order may be modified so too can the child support order be modified when circumstance change. Remarriage of either the custodial or non-custodial parent is an important factor for the court to consider in determining whether a child support should be modified. Modification of a child support award may go up as well as down depending on the circumstances resulting from the remarriage. Child support is based upon disposable income which is the amount of income a parent has left over after all of the necessities of life have been paid. When a parent remarries, the new step-parent may be contributing to the cost of running the home and thus actually increases the parent’s disposable income. On the other hand, if the step-parent does not work or contribute to the cost of running the home or has newchildren, then the disposable income may go down. This could be grounds for reducing the child support for the payor spouse or increasing child support for the recipient spouse depending on who it was that remarried.

In a few states, if the non-custodial parent is denied visitation by the custodial parent, then the non-custodial parent may be excused from the paying of child support. Most states, including California, treat the requirement to pay child support separate and unrelated to child visitation. The majority view is that the non-custodial parent can always go to court and gain redress if the custodial parent interferes with visitation and therefore there is no justification in resorting to self-help and not paying child support. In many instances, this has resulted in the committing of many injustices. The non-custodial parent, usually the father, who has been denied visitation for years, may suddenly face criminal prosecution and a huge judgment for back child support. Recent studies have shown that when a father is permitted to see the child then support payments are made over 90% of the time. When, however, child visitation is deliberately prevented then the drops to less than 40%.

Child napping is the taking of a child by a non-custodial parent in violation of a valid custody order. It is usually a felony punishable for up to five years and a termination of all parental rights. In addition, it is also a federal offense. Since most custody awards are to mothers, it is not surprising that mostchild nappers are fathers although it is usually only the child napping committed by mothers which is highlighted by the media. As, however, more courts are rendering joint custody awards, the number of women engaging in child napping has been steadily increasing.The reasons for child napping vary but the one most often cited is the feeling that the ex-spouse is exposing the child to an wholesome or immoral atmosphere and that child napping is the only means to protect the child. The following steps should be taken when child napping has occurred:

1. The local police should be contacted immediately and a missing person’s report completed;

2. A report should be filed immediately with the FBI’s National Crime Information Center’s computer. If local

authorities refuse to do it, then the report should

be made directly with the FBI;

3. The National Center for Missing and Exploited Children should be contacted at 1-800-843-56788 for local support groups;

4. The local district attorney should be contacted to determine if criminal prosecution is possible. If there

was no custody order in effect, then no crime may have

been committed.

5. A petition should also be filed with the Court by the non- child napping spouse to terminate parental rights and obtain full custody. If the court had not previously entered a custody order, no crime will exist until the order is entered. For this reason, it should be done as soon as possible.

Both parents have legal rights and obligations towards their children. Neither parent can unilaterally interfere with the rights and obligations for the other parent. Even though a divorce may be pending, visitation and contact with a child can not be denied without a court order. Usually during a divorce, temporary court orders are obtained which specify child visitation rights. These court visitation orders are not final and may be modified in the final custody order.

Feminist organizations have objected to a judge’s use of financial considerations in making a child custody award. The argument has been advanced that financial considerations should be employed in determining child custody because it usually benefits the father. It is argued that a father often earns more than a mother and therefore has more money available to dote on the child. To base a child custody award simply upon disposable income of the parent is, in essence, simply selling the child to the more affluent parent. In Dempsey v. Dempsey (1980) 96 Mich.App. 276 it was held to be error to base a father’s custody award solely upon his superior financial wherewithal when the mother had been furnishing the child care. While it is true that financial consideration should not be the sole ground for awarding child custody it, nonetheless, should be a factor to be considered. Notto consider financial security for the child is to negate an important factor in the favor of one parent, usually the father. It is true that child support is intended to reduce the importance of the non-custodial parent’s financial wherewithal but it does not, in reality replace it.

The best interests of the child is not determined solely upon which parent has the nicest home or best toys. In Gould v. Gould, (1984) 116 Wis.2d 493, the court refused to award custody solely based upon financial considerations:

“While the economic well-being of child of divorced parents must be provided for, it is best achieved by the court’s making appropriate child support and maintenance awards and by focusing judicial resources on enforcement of awards and not by considering financial ability as a criterion for custody.”

Intangible factors such as parental love, attention and support are more important. Nonetheless, even of these factors are heavily influenced by the financial security of the parent. If for example, both parents are loving and fit, a parent who must work sixty hours per week will have less time to spend raising the child than a parent who can afford to stay home and tend the child’s interests. This has always been the primary reason for warding child custody to the mother. The belief that most women, even if they remarry will stay at home and raise the child has been the primary reason for awarding child custody to the mother. In order to lessen gender bias in custody decisions it is recommended that judges give weight to the importance and strength of the emotional bond between the child and the primary custodial parent in evaluating what custodywould be in the best interests of the child. Justice for Women”, Nev. Sup. Court Gender Bias Task Force.

The traditional view that women will stay at home and therefore are entitled to raise the child custody as be turned on its head in recent years. Therefore if the father is a fit parent there is no reason to award custody to the mother on the sole belief that she will be available at home to raise the child. In such an instance, the question is who is the better parent to raise the child when both parents work. Today, most women with children work. Many states have begun to recognize this fact and hold that a working mother is not be held unfit to raise children simply because she is working. The California Supreme Court in Burchard v. Garay 724 P.2d 496 held that since

“over 50% of mothers and 80% of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of

her child.”

This issue was highly publicized in the divorce of Marsha Clark the prosecutor in the O.J. Simpson murder trial. The ex-husband of Marsha Clark sought custody of their children alleging that the overtime she was spending was adversely affecting her child rearing responsibilities. Feminists immediately attached the father as a sexist merely because he wanted custody of his children based upon a belief that they were being neglected. The argument being raised was not that custody should be removed because Marsh Clark was working but because of the allegation that the work unreasonablyinterfered with her parental responsibilities. The reason that most women get child custody is the traditional belief that they have more time to spend with the child. Now that most women work that assumption is no longer valid. If Marsha Clark was man, Matt Clark, with custody and the mother brought the action on the same grounds, there would not been the hue and cry that Matt Clark was being punished because he was a working father. As an aside, the press stated that Marsha Clark earns almost twice that of her he ex-husband. As such, financial considerations favor Marsha Clark over her husband a fact that many feminists loudly assert in her favor while, in the past, having espoused their nonuse when the use favored fathers.

One of the hardest child custody problems occurs when the non-custodial parent, usually, the father remarries. In such situation, the father is able to offer a conventional and traditional home environment with both a father and step-mother being present. In such a situation, the court must consider whether it is better for the child to have two parents or just one. The best interests of the child are supposedly at issue and not the personal wants and desires of the parents. Feminist organizations take the position that remarriage of the father should not result in modification of the mother’s custody rights. Such a view is not the law. Child custody rights are always modifiable if the circumstance merit it. The traditional basis for awarding child custody has been made on the belief that two parents are better than one but when only oneparent can have custoDY it should be the mother because of her ability to stay at home and dote o the child. If both parents are fit and the father is remarried with a stay at home wife, then that situation is closer to the traditional view than an single working mother raising a child.

There have been many instances where women have attempted to sabotage the father’s right to participate in the raising of a child. A classic case of this occurred in 1991 in California. In this case, the mother was given custody of a girl remarried and moved with her new husband to Germany. While in Germany she sent a letter to the father stating that the child died. Several years later, the father received notice that the step-father wanted to adopt the child. The child had not died and they had all,moved to South Carolina. The father objected to the adoption and wanted to have custody of the child. A family law judge in California terminated the father’s parental rights in the child because he had no contact with the child for years. The appellate court reversed and granted the father limited visitation rights recognizing that the mother’s actions probably poisoned any attempt to ever have a true father-daughter relationship. This case highlights the extent which gender bias afflicts the judiciary. The court rewarded the mother for her despicable act of inflicting emotion distress on the father by telling him that his daughter was dead and thereby preventing him from having any contact with her for years. The result of this was that the court ended up letting the motherretain nearly complete control of the child.

A relatively new concept in child custody is that of joint custody. In joint custody, both the father and mother have equal right to make decisions affecting the child but only one spouse is given physical custody of the child. the purpose of joint custody is to keep the non-custodial parent, usually the father, involved in the raising of the child. Joint custody has its own set of problems that are not present in the sole custody relationship. Joint Custody requires both parents to work together to raise the child. Often that is not possible. In making a joint custody order, a judge should investigate the ability of both parents to work together in an on-going spirit of cooperation and decision-making. In implementing a joint custody order, a judge consider the viability of court order mediated or counseling. Joint custody usually gives one parent the physical custody of the child but both parents have the right to make decisions regarding how the child is raised. Joint Custody: An Alternative for Divorced Parents 26 U.C.L.A. L.Rev. 1084 (1979). Legal custody vests both parents with the rights to make decisions regarding child residency, medical care, religious training and discipline. Burger v. San Francisco (1953) 41 Cal. 2d 608. Joint Custody is followed in over half of the states. The remaining states still follow the common law wherein only one parent is given physical and legal custody with the other parent being given only a specific visitation schedule and an order to pay a specific amount of child support. JointCustody Awards; Towards the development of Judicial Standards 48 Fordham L. Rev. 105.

Several states, Connecticut, Hawaii, Kentucky, Maine, Michigan, Minnesota, Montana, North Carolina, Oregon and Pennsylvania, give their courts the option of awarding joint custody when it is in the best interest of the child to do so. Criticism of the option statute is that it fails to establish any limits or guidelines for the court in awarding joint custody. It is felt that many courts simply award joint custody as an option to avoid hurting the feelings of the parent who would otherwise be denied legal custody. Dodd v. Dodd (1978) 83 Misc 2d 641, 402 N.Y.S. 401. This option can also have the effect of forcing parents who are not in agreement to work together. Sometimes the parents can work the differences out without court intervention often they can not and then the court must step forward and terminate the joint custody and award sole custody to only one parent. Joint Custody, 13 Fam. L.Q. 345. Some states, Kansas, Louisiana, Massachusetts, Ohio, Texas and Wisconsin, will award joint legal custody only where both parents request it. The court still retains the authority to deny joint custody when it finds it in the best interest of the child to do so. New York permits joint custody awards by case law only where the parents agree. Braiman v. Braiman (1978) 44 N.Y.2d 584. Similar to the joint custody option is the right of a court to award it upon the request of either parent which is permitted in California, Hawaii, Michigan, Montana, NewHampshire and Pennsylvania. As with the option statutes, a court can end up forcing parents who can not work together to do so in order to raise their children.

Many states, California, Connecticut, Florida, Idaho, Michigan, Nevada, New Hampshire and new mexico, have enacted statutes requiring their courts to first consider joint custody before awarding separate child custody to just one parent. This position was taken to combat the discriminatory view of many old time judges that a mother should always be awarded custody unless the father proved her to be unfit. Many other states have bills pending to enact the presumption requirement. Under these presumptions statutes, it is presumed that joint custody is in the best interests of the child unless proven otherwise.

A minority view for the award of child custody is to base it upon the primary care presumption. The West Virginia Supreme Court in its decision Garska v. McCoy (1981) 278 S.E.2d 357. has, to date, adopted the presumption that children should be awarded to the parent who has been the primary care giver. The Minnesota Supreme Court in Pikula v. Pikula (1985) 374 N.W.2d 705 also applied the primary care provider, “absent a showing that parent is unfit to be the custodian”. Washington, by statute, requires that the greatest weight be given to the “relative strength, nature and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performance of parental functions relating to the daily needs of the child”.Most states have not adopted the primary caregiver test because it is a very narrow test which applies to only one standard. Most judges want to make as complete a determination as possible and therefore want to consider all relevant factors before making a determination and not be limited to just one element.

II. CHILD SUPPORT

A parent has a duty imposed by law to support all child born or adopted by the person. As such courts, have a duty to both set reasonable child support and to insure their collection form the parent. Until very recently, courts have failed to oversee collection of child support. Toady, however, all states are now attempting to enforce child support. In 1984 Congress enacted the Child Enforcement Amendment Act (CSEA) to aid judges in the enforcement of child support order. Under CSEA, judges can order the following remedies for the failure to pay child support:

(1) wage withholding on both state and sister state order;

(2) the posting of bonds, securities or pledging of

property to secure child support payments;

(3) imposition of child support liens on any property; and

(4) interception of Federal and State tax refunds for

payment of child support.

The CSEA was enacted to aid judges in their duties to ensure collection of court ordered child support. Following CSEA, Congress enacted the Family Support Act of 1988 (FSA). The main advantage of the FSA is that it permits family judges to order wage withholdingeven though the noncustodial parent in not in areas. The FSA requires automatic wage withholding from the noncustodial parent unless the finds good cause for not requiring it or the parties agree in writing to another arrangement.

The nonpayment of child support has a very prejudicial effect upon the life style of most children. Most single parents need very desperately the child support payments ordered by the court. The failure of the noncustodial parent often forces the custodial parent onto the government welfare rolls. One of the main reasons that parents refuse to pay their court ordered award is that the custodial parent, usually the mother, interferes with the custodial parent’s rights to participate in visitation and raising of the child. Nearly all states today separate child support from visitation. In California, for instance, unless a custodial parent has actually concealed the child, the noncustodial parent still has the duty to make court ordered support awards. Today, the intentional refusal to make court ordered awards is a criminal offense in itself where in the past it was merely subject to a contempt proceeding in most states.

In setting child support awards, the trend is to base it upon all of the income available in the non-custodial household. The Nevada Supreme Court, for instance, in Jackson v. Jackson No. 27153 (Dec. 1995) held that a district court may consider a cohabitant’s contributions to household expenses under the “relative income of the Parties” factor of NRS 125B.080 in setting child supportawards.

III. EFFECT OF EX-SPOUSE’S BANKRUPTCY

A. ON SPOUSAL AND CHILD SUPPORT

Under section 523(a)(5), courts ordered payments for the support of a child or former spouse are non-dischargeable. However there are variations on this theme for which a debtor must be aware. WHERE BACK CHILD SUPPORT IS AT ISSUE THE DEBTOR SHOULD CONSULT AN ATTORNEY BECAUSE IT MIGHT BE A CRIMINAL ACT, QUITE APART FROM THE BANKRUPTCY LAW, NOT TO HAVE PAID IT. The non-dischargeable debts for spousal or child support under 11 U.S.C. section 523(a)(7) are:

“[D]ebts to a spouse, former spouse, pr child of the debtor for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with state or territorial law by a governmental unit, or property settlement agreement, but not to the extent that such debt –

(a) is assigned to another entity, voluntarily, or by operation or law or otherwise;

(b) includes a liability designation as alimony, maintenance or support, unless such liability is actually in the nature of alimony, maintenance or support.

Once a court orders a parent to make child support payments, the obligation to make those payments then become non-dischargeable. In re Harrell 33 B.R. 989 (1983). The obligation to make child support payments, ordered by a court, is not discharged even if it is assigned to a state or governmental agency. In other words, if a county or state agency provides benefits to a family because of thedebtor’s failure to make court ordered support payments, the state or other governmental agency is assigned the right to receive reimbursement. That right to receive reimbursement for the support payments made by the state for the support of debtor’s child can not be discharged (as it once was) by the debtor’s subsequent bankruptcy.

The general rule is that claims of third parties for property or services provided for a child’s support are dischargeable by a parent, In re Lo Grasso, 23 F.Supp. 340. There is, however, case law which holds that where a parent deserts or neglect the children, then the debts for the property or services which have been provided by third parties are not dischargeable, In re Meyers 12 F.2d 938.

In order for debtor’s child support obligation to be non-dischargeable, there must be a court order requiring the support payments to be made. All states have laws that impose upon a parent the duty to support a child. In addition, the parent can be sued for the value of the child support provided by third parties. However, those debts are dischargeable unless reduced to a judgment prior to the debtor-parent filing for bankruptcy protection. For example, if a mother deserted her children and the father raised them, then the father would be entitled for reimbursement from the mother for her share of the child support. If the mother files for bankruptcy relief before the father gets a judgment for reimbursement, then the obligation to reimburse thefather for the back child support is discharged. However if the father obtained a court order requiring the mother to reimburse the father for the back support, then the debt for back support is not dischargeable.

Spousal support, which is also referred to as alimony, requires either a court order or an agreement obligating the debtor to make support payments to the spouse in order for the obligation to make the payments not be dischargeable. The debtor may agree to make spousal support payments through a marital agreement or a property settlement agreement and such support payments are non-dischargeable. Without either a court judgment ordering a debtor to make spousal support payments or an agreeing requiring them to be made, the debtor’s obligation to make support payments can be terminated in a bankruptcy.

Where parties are not married, unless the relationship qualifies as a common law marriage, the debtor may be discharged from any obligation to make support payments to the other party through a bankruptcy proceeding.

THE BANKRUPTCY ACT OF 1994 AMENDED THE AUTOMATIC STAY UNDER SECTION 362 TO PROVIDE THAT COLLECTION OF SPOUSAL OR CHILD SUPPORT PAYMENTS FROM PROPERTY WHICH IS NOT PROPERTY OF THE ESTATE IS NOT SUBJECT TO THE AUTOMATIC STAY. The 1994 Act also prohibited the Automatic Stay from blocking commencement or continuation of proceedings to enforce alimony and child support during thebankruptcy case. In a Chapter 13 case, property acquired during the life of the Chapter 13 Plan is considered property of the estate. Under the Bankruptcy Act of 1994, child and spousal support claims now have priority over and are to be paid before general unsecured claims and also tax claims. In addition, the Bankruptcy Act of 1994 prohibits both the Trustee and the debtor from the recovery of any property transferred to spouse or a child in connection with a divorce or separation made within one year of the filing of the bankruptcy petition. Before this amendment, The Trustee and the debtor were each permitted to avoid such payments made within a year of the bankruptcy filing as a creditor preference or a payment not supported by reasonable equivalent consideration. Section 522 of the Bankruptcy Code was amended, under the 1994 Bankruptcy Act, to prohibit a debtor from being able to avoid a judgment lien on otherwise exempt property for child or support payments.

Regardless if the debts are collected or incurred during the bankruptcy, the obligation survives the bankruptcy and the debtor must still pay it in full.

B. ON PROPERTY SETTLEMENT

The Bankruptcy Act of 1994 had a profound impact on property settlement agreements. Prior to the Act, property settlement agreements, unlike support obligations were dischargeable in a bankruptcy. Even pension payments under a property settlement agreement were held to be dischargeable in a bankruptcy.

The 1994 Bankruptcy Act changed the law, on this issue,dramatically. The Act added section 523(a)(15) which holds that debt incurred in a property settlement agreement that is neither for spousal or child support can be discharged only if:

(a) the debtor does not have the ability to pay such debt from the income or property of the debtor in excess of what is needed to support the debtor and the debtor’s dependents, or

(b) after balancing the hardships between the debtor and the holder of the obligation (spouse, former spouse or

child) the benefit to the debtor from the discharge

outweighs the detriment caused by the discharge to the

holder of the obligation.

The discharge of a property settlement agreement is, in essence, to be denied only when it would have a substantial detriment to the debtor’s spouse that outweighs the debtor’s need for a fresh start.

However, a discharge of property settlement agreement can be a double edged sword for the debtor. By discharging the obligation to make a property settlement, the debtor may have more resources with which to pay increased child or spousal support. Such a case occurred in Nevada where a doctor was ordered to pay $3,000 per month in alimony for 5 years and $1.25 million in a property settlement for purchase of his ex-wife’s interest in the medical practice. The doctor filed a bankruptcy petition and discharged the obligation, under the pre-1994 law. The ex-wife then moved the Nevada court to increase alimony payments and was awarded $7,500for life or until remarriage. The award was upheld in federal court.

Overall, the discharge may have benefited the doctor more than the ex-wife because even with the extra monthly payments, the amount paid is less than the interest payments on the $1.25 million which were discharged in the bankruptcy.

One important difference between property settlement and child spousal payments in a bankruptcy is that the property settlement will be set aside unless a complaint for non-dischargeability if timely filed. On the other hand, spousal and child support payments are not dischargeable so no complaint against their dischargeability is required to be filed. As such unless a complaint for non-dischargeability of the property settlement agreement is filed within sixty days of the first meeting of creditors, which is usually within 100 days, of the filing of the bankruptcy petition, the discharge will be granted.

CHAPTER FOUR
SEXUAL HARASSMENT IN THE LEGAL PROFESSION

INTRODUCTION

Sexual harassment can affect either men or women. in its simplest form, sexual harassment is discrimination or the creation of a hostile work environment directed against a person by virtue of that person’s sex. Sexual harassment affects every employer including the legal profession and the judiciary. Sexual harassment, as defined by the Equal Employment Opportunity Commission, 20 CFR, Sec. 1604.11 pertains to either physical or verbal conduct and exists when:

1. submission to the conduct is made either explicitly or implicitly a condition of employment’

2. submission to or rejection of such above condition is used as a basis for employment decisions affecting the individual, or

3. such conduct substantially interferes with an individual’s work or creates an offensive work environment.

Once an employer is informed of sexual harassment and does not take sufficient corrective action, then the employer can be sued in federal court or have a compliant filed with the EEOC. The employer is responsible, under both state and federal law, not to tolerate sexual harassment of employees at work.

Sexual harassment does not require overt conduct by a man to a woman. There have been many lawsuits whereby women have sued other women for creating an hostile work environment. Such women have claimed that the other women have, by explicitly sexual or profane language, caused them severe emotional distress. It has nowbeen settled that a person may bring a sexual harassment case without having incurred any loss of benefits or economic damages as a result of the harassment. In Bundy vs. Jackson, (1981) 641 F.2d 934, it was held that a sexual harassment action could be brought against an employer for maintaining a substantially hostile work environment even though no job benefits were lost. The United States Supreme Court in MERITOR SAVINGS BANK vs. VINSON (1986) 477 U.S. 557 held that an employer who creates or maintains a “hostile work environment” may be liable for sexual harassment even though there has been no economic effect suffered by the plaintiff. The Ninth Circuit Court of Appeals, which covers the West Coast, has held that the test to be used in determining whether any conduct is harassment is that of the “reasonable woman” standard. Therefore, if a reasonable woman would be offended by the conduct, it is there found to be harassment regardless of whether the average reasonable man would not consider it harassment.

One of the most common sources of sexual harassment cases involves the alleged wrongful termination of an employee who does not have a written employment contract. Most employment in the United States is done without executing a written contract. Termination of such employment is therefore “AT THE WILL” of the employer. Unless state law requires grounds for the discharge of an employee, an employer may fire an employee who does not have an employment contract at any time and for no reason at all providedthe discharge is not for a discriminatory reason. The only limitation on an “at-will” employer is that the employer may not fire an “at-will” employee for an illegal discriminatory reason such as age, sex, religion or natural origin. California is in the minority of states which will find an implied contract not to fire an employee without just cause if the employer says or does anything that creates the reasonable belief that discharge will only be for cause. The implied contract theory used in California is not followed in most other states.

The legal profession is not immune from sexual malpractice suits. As with any partnership, a legal partnership carries with it the liability by each partner for the debts and acts of the other partners. Under general partnership law, this means that each partner will be liable for any sexual harassment judgment obtained against the partnership. In short, the partners have agreed, by forming a partnership, to guaranty payment of any debts or judgments taken against the partnership. Partners are not liable for the personal non-partnership related debts of the other partners. Under the Uniform Partnership Act, the partnership (and thus the partners) are liable for “any wrongful act or omission of any partner in the ordinary course of the business of the partnership.” Where loss or injury is caused to any person by the partnership, the partners are individually liable for payment of the damages. In addition, the partners are liable for the monetary damages that arise from the actions of partnership employee or thepartnership. The classic example of liability for a partner’s

action is the sexual harassment case, Rena Weeks vs. Baker & McKenzie and Greenstein. In 1994, a jury, in San Francisco, awarded a legal secretary $6.5 million, nearly of which, was punitive damages against Baker & McKenzie. The trial court later reduced the judgement against Baker & McKenzie to $3.5 million. The judgment is under appeal. The plaintiff’s attorneys are also seeking another $3.3 million as attorney fees under the Fair Employment and Housing Act and private attorney general statutes. This case demonstrates that partners may be personally liable for the acts committed by their partners. If the firm’s malpractice insurance policy does not cover intentional torts, such as sexual harassment, then the partnership will have to pay the judgment itself. If there is no insurance coverage, the partners of Baker & McKenzie may have to take a reduced share of profits in order to pay the judgment.

SEXUAL HARASSMENT CLAIMS UNDER THE CIVIL RIGHTS ACT

Sexual harassment claims can also be pursued under the Civil Rights Act of 1991 which also pertains to discrimination in employment. The key provisions of the Act pertain:

1. Compensatory and punitive damages against the employer for victims of intentional discrimination based on sex, religion, disability, race or natural origin. Damages

are capped based on the size of the employer.

2. Jury trials in cases involving compensatory and punitive damages.

3. An easier burden of proof for the plaintiff.

4. An expansion of existing law to cover racial harassment and discharge on the job.

Under the Civil Rights Act of 1991, the Rehabilitation Act and the Americans with Disabilities Act were amended to permit victims of intentional discrimination on the basis of sex, disability or religion to sue for compensatory or punitive damages. Victims of racial discrimination were already permitted to sue for such damages under U.S.C. Section 1981. Recovery of the above damages are not permitted in cases on unintentional discrimination due to the impact of neutral employment practices.

Plaintiffs may recover both compensatory and punitive damages for violations of the Civil Rights Act of 1991. However, punitive damages are not recoverable from a government, government agency or political subdivision. In order to get punitive damages, it must be shown that the employer acted with malice or reckless disregard of the employee’s civil rights. Recovery for both compensatory (future pecuniary losses, pain and suffering, etc.) and punitive damages is limited by the size of the employer as follows:

MAXIMUM RECOVERY NUMBER OF EMPLOYEES

$50,000 15-100

$100,000 101-200

$200,000 201-500

$300,000 501 OR MORE

There is no limit on compensatory damages for past pecuniary losses. Nor are damages suffered as a result of racial discrimination limited under Title 42 U.S.C. section 1981. As strange as it seems, prior to the Civil Rights Act of 1991, whileit was unlawful to discriminate on the basis of race in hiring and promotions it was not unlawful to harass an employee based on race. The United States Supreme Court has held that previous civil rights laws did not protect workers from racial discrimination on the job.

The 1991 Civil Rights Act now permits claims for racial discrimination in the making performance reviews, modification and termination of employment contracts as well as the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. In other words, an employer is no longer permitted, under federal law, to harass employees because of their race.

The 1991 Civil Rights Act makes it easier for an employee to maintain a legal action for an alleged civil rights violation in employment. Under the Act, once an employee demonstrates that a particular practice of an employer causes a disparate impact on minorities and women, then the burden of p[roof shifts to the employer to show that the challenged practice is job related for the position in question and consistent with business with business necessity. The employee may also prove unlawful disparate impact by showing that a less discriminatory alternative is available and the employer refuses to adopt it.

Prior to the 1991 Civil Rights Act, many employers, specifically governmental agencies, routinely adjusted upward the employment test scores for minorities and women. This procedure was called gender or race norming. Supposedly, these practices were intended to adjust for the fact that women and minorities were notexposed to the educational system to the extent of white males. Had they been, the theory went, then they would have actually achieved these higher scores. In December 1991, the federal government prohibited state employment agencies from increasing the scores of minority applicants on federally sanctioned aptitude tests.

Mixed motive discrimination exists when an employer acts, at least in part, for a discriminatory reason but proves that it would have reached the same decision based on non-discriminatory reasons. Under the 1991 Civil Rights Act, when an employer shows in mixed motive cases that the same result would have been taken for non-discriminatory reasons, the court may prohibit the employer from considering the discriminatory motive in the future, award declaratory relief, attorney fees and costs. In such cases, the employee still may not reviver damages, reinstatement or promotion.

Prior to the 1991 Civil Rights Act, plaintiffs alleging age discrimination, which is often asserted by women, had two years from the alleged discriminatory act or three years for willful discrimination to file a lawsuit. The time was tolled for up to a year if the EEOC attempted to get voluntary compliance. By comparison, persons claiming racial discrimination under the 1964 Civil Rights Act only had ninety (90) days to file a lawsuit after the EEOC gave the complainant a letter notifying the person of the “right to sue”. The Act amends the Age Discrimination in Employment ACT (ADEA). The EEOC is now required to notify the complainant upon termination of the complaint proceedings. The complainant will thenhave only ninety days to file suit after receipt of the notice. Prior to the 1991 Civil Rights Act, plaintiffs could not recover the fees expended for expert witnesses over $40.00. This made getting a recovery in many cases worthless because it could be eaten up by expert witness fees. In the alternative, cases went to trail without experts because of the costs involved. The 1991 Civil Rights Act now awards the plaintiff expert witness fees if the plaintiff should prevail.

It is also against the law to discriminate against a pregnant woman worker. Most states require an employer to provide unpaid leave for a pregnant woman for up to three months. The federal government requires that employers with over 25 employees to offer parental leave for up to three months after a child is borne. It is also against the law for an employer to reduce or take away a woman’s seniority while she is on pregnancy leave. Pregnancy is not a disability so the employer is not required to furnish any disability benefits. A pregnant woman is entitled to sick leave during the pregnancy.

The United States Supreme Court in Intern’l Union, UAW vs. Johnson Controls (1991) 499 U.S. 1196 held that employers can not deny women the opportunity to work in an environment that might cause genetically deformed children. In that case, the employer, a battery manufacturer, excluded women from working in areas where they would be exposed to chemicals or materials known to cause birth defects. The employer was concerned with the possibility ofhaving to pay higher insurance premiums to cover the anticipated medical treatment of children borne with defects as a result of their mother’s exposure. The court found the argument irrelevant. Since the fathers were exposed to the same hazards, the mothers had the right to demand exposure if they wanted it. Regardless of personal feelings on the matter, the Supreme Court has ruled that the employer can not discriminate even with the best of intentions and legitimate business motives.

1. JUDICIAL DUTY TO AVOID GENDER BIAS AND SEXUAL HARRASSMENT

Under the Canons of Judicial Conduct (CJC) Canon 3 (1972) and Canon 1 (1990), a judge is mandated to dispense all judicial duties in an impartial and diligent manner. A judge is required to place the judicial responsibilities of the office above all other considerations. A judge is required to remain ever faithful to the law and to work to maintain confidence in it. In re Hague (1982) 315 N.W.2d 524, a judge was disciplined for routinely dismissing gun control and prostitution cases because disagreements with the law despite instructions not to do so from higher courts. In the conduct of the court, the judge is required to be patient, dignified and courteous to all and is to require persons appearing in the court to be so also. In the conduct of the court and the rulings made therein, a Judge is not to be influenced by “partisan interests, public clamor or fear of criticism. A judge should conduct all judicial business in a prompt and efficient manner. In operating a court, a judge’s appointments should be necessary andbased upon merit. A judge should avoid nepotism or favoritism and the compensation for the appointees should be no more than the fair market value for the services.

A judge should conduct the court so as to give everyone a full right to be heard. A judge may not let sexual bias or prejudice interfere with the obligation to conduct a full and fair hearing. A judge must operate a courtroom so that justice is served. The atmosphere of the court must be such that a defendant is granted a full and fair trial with an impartial jury. Illinois vs. Allen (1970) 397 U.S. 337, Mayberry vs. Pennsylvania (1971) 400 U.S. 455. A judge is under an obligation to disqualify himself or herself whenever the circumstances arise that the judge’s impartiality may be reasonably questioned.

A judge’s conduct out of court must be exemplary or else the judge may be subject for discipline conduct which brings the judiciary into disrepute. in the case In re Roth (1982) 645 P.2d 1064 a judge was disciplined for breaking a car window and slapping his estranged wife when he found her in a car with another man. In the Matter of Lawson (1991) 590 A.2d 1132, a judge was disciplined for drunk driving. Discipline was appropriate for not only failing to obey the law, something a judge is always required to do, but also for conduct off the bench which brought the court into disrepute.

The governing principle for any judicial conduct is that itdoes not create the appearance of impropriety CJC 2A. This principle applies to a judges’s conduct both on and off a bench. Canon 2(A) and (B) of the CJC (1972) reads as follows;

“A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interest of others, nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.”

In furtherance of this duty, the Code of Judicial Conduct covers, as an example, several specific types of conduct for which a judge may not engage both on and off the bench.

A judge is prohibited from permitting outside relationships from affecting the judge’s conduct or judgment. Under this canon, such outside relationships include, but are not limited to familial, social or political relationships. The gist of this prohibition is that a judge must recuse himself or herself from any action in which some type of outside personal relationship will exert direct or indirect influence or pressure on the ruling which the Judge must make.

The A.B.A. Committee on Professional Ethics have issued both form al and informal opinions regarding a judges duty under Canon 2. The formal opinions are official opinions on the general practice in question whereas informal opinion are opinionsfurnished on the request of judges regarding specific proposed conduct. Under Op. 110, a judge, for example, who is permitted to

have an outside practice of law, could not serve as a judge in a criminal case for nonsupport of the husband, when the judge represented the wife in the dissolution.

The most controversial aspect of CJC Canon 2 is CJC Canon 2C which forbids a judge being a member of an organization that currently practices “invidious discrimination” based upon race, sex, religion or national origin. Specifically exempted under CJC 2C is membership in an “intimate, purely private organization” the membership in which could not be constitutionally prohibited. In addition, members is permitted in an organization which otherwise would be prohibited if the organization is “dedicated to the preservation of religious, ethnic or cultural values of legitimate concern to its members.” Some states, such as California, have added or propose to add to their CJC a provision that a Judge may not belong to an organization which discriminates based upon sexual preference. In California, a dispute has arisen because such a provision would expose a Judge for discipline for serving as counselor or even driving a child to a Boys Scouts of America function because the Boys Scouts do not support homosexuality. It is asserted that such conduct by the Judges would be perceived as support for the anti-homosexuality position of the Boy Scouts and thus is support of an organization supporting invidious discrimination. Under the Comment to CJC 2C, when a Judge discoversthat the organization practices invidious discrimination which is not otherwise permitted, the Judge must either resign promptly from the organization or work to end the discriminatory practice. If the organization does not change its discrimination practice within one year, then the Judge must resign from the organization.

A recent case evidencing a judges’ requirement to avoid the appearance of impropriety is Fitch vs. Commission on Judicial Performance (1995) 95 D.A.R. 1842. The California Supreme Court, therein, censured a Judge for frequently making sexually offensive comments to female court personnel and occasionally touching those staffers improperly. The Court ruled that the conduct was “such as to bring the judicial conduct into disrepute, being conduct damaging to the esteem for the judiciary held by the members of the public who observed such.”

In avoiding the appearance of impropriety, a judge is required to comply with the law in all instances and also to conduct all personal affairs in a manner as so promote public confidence in the judiciary. The CJC imposes upon judges the duty to avoid all irresponsible and improper conduct. By virtue of the position a judge, a person agrees to lead a life with restrictions on the person’s conduct that are imposed on the ordinary individual. A judge is considered to always be under public scrutiny. Therefore the conduct of the judge is always susceptible to review and comment and where it exposes the judiciary to disrepute, that conduct is subject to discipline.

2. JUDICIAL HANDLING OF SEXUAL HARASSMENT MATTERS

As stated above, judges are required to handle sexual harassment cases in a neutral sex blind manner. In reality, it is often hard for judges to divorce themselves from their perceived sexual beliefs and stereotypes. It is a commonly held belief that women would not lie about experiencing and therefore if a women said it occurred then it did. This belief is contrary to the concept of innocent until proven guilty. It has always been the hallmark of American Jurisprudence that a plaintiff be required to prove the allegations in any complaint in order to get a recovery. The belief that an unsubstantiated allegation, should in itself, be the basis of a judgment is unique to sexual harassment and rape field. Until 1975, California had a jury instruction which required the jury to examine the complainant’s testimony with caution. The standard California rape instruction used to state, in part:

“A charge such as that made against the defendant in this case is one which is easily made and, once made, difficult to defend against, even if the person accused is innocent…., the law requires that you examine the testimony of the female person named in the information with caution.”

People vs. Rincon-Pineda (1975) 538 P.2d 247. The debate upon the sanctity of a woman’s complaint for sexual harassment hit the forefront of American consciousness in the Anita Hill vs. Clarence Thomas debate. At the U.S. Supreme Court confirmation hearing, Ms. Hill claimed that years earlier Clarence Thomas had sexually harassed her while she worked for him in the EEOC. The hearingswere televised Judge Thomas was subsequently confirmed to the United States Supreme Court. The interesting factor of the hearing was that immediately after the hearings a poll of American public who viewed the hearings and had them fresh in their minds concluded by over 66% that no sexual harassment had occurred. A year later in which feminist groups continually berated Justice Thomas, who never responded to the personal attacks, a poll showed that nearly 60% now believed that sexual harassment has occurred. This highlights, not guilt or innocence, but the power of the press to convince people that what they had seen and heard for themselves was not what they thought. Because of the every fact that people may view conduct from different prospectives, it is important that judges and juries avoid both liberal or conservative biases and instead adjudicate matters in sex neutral context to the extent possible. Courts have been careful to limit sexual harassment claims to actions which create a hostile work environment rather merely asking one time for a date and being rebuffed. Most married persons met there future spouses on the job. It would be hypocritical and virtually useless for a company to attempt to bar company dating or romances. Employers do have a duty to ensue that when an employee rejects the initial advances of another on the job that no harassment or sanctions thereafter follow. This tightrope which employers must walk was highlighted in Thomkins vs PSE & G Co. (1976) 422 F. Supp. 553, which recognized the difficulty in deciding between sexual harassment and normal human interchange:

“If the plaintiff’s view were to prevail, no supervisor could, prudently, attempt to open a social dialogue with any subordinate of either sex. Am invitation to dinner could become an invitation to a federal lawsuit… And if an inebriated approach by a supervisor to a subordinate at the office Christmas party could form the basis of a federal lawsuit… If a promotion or raise is later denied to the subordinate, we would need 4,000 federal judges instead of 400.”

The key for a plaintiff’s success on a sexual harassment claim is whether the conduct created a hostile work environment. In Henson vs, City of Dundee, (1982) 682 F.2d 897, the court held that is was sexual harassment for a company to force a woman “to run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living.” What constitutes a hostile work environment is determined on a case by case basis. There is a belief that an employer should not be liable for attentions paid between individuals that have their basis in the natural behavior between men and women without knowledge that one person has crossed over the line into improper sexual harassment. Barnes vs. Costle (1977) 561 F.2d 983. In contrast, in Bundy vs. Jackson (1981) 641 F.2d 934, a hostile work environment was found to exist where a male supervisor repeatedly made sexual overtures to the plaintiff and described his sexual prowess with other women. The plaintiff was not fired but since the employer did not act on her complaints, it was liable for permitting the hostile environment to continue. In contrast not all conduct, even if of a sexual nature, may not rise to the level of a creating a hostile work environment.Likewise, in EEOC vs.Sage Realty Co. (1980) 507 F.Supp. 599 sexual harassment was found to have occurred where a woman was required to wear a sexually revealing uniform which caused her to receive insulting comments and sexual propositions. In Rabidue vs. Osceola Refining Co (1986) 805 F.2d 611 held that poster displays, that were not obscene, had only a minimal effect on the work environment and thus could not support a sexual harassment claim.

The move to abolish all sexual harassment can go too far and impinge and chill the free exercise of free speech. In 1994, Los Angeles sought to prohibit a Captain in the fire department from reading a Playboy magazine on his own time in his own quarters in the fire house as part of its policy to abolish sexual harassment. As additional facts to the case was that there were no women fire fighters in the fire house. Despite this fact, women twenty miles away in the claimed that sexual harassment was occurring because this man was reading Playboy in private. The Captain, rather than be branded a sexual harasser, challenged the policy in Federal Court and won.

One of the most common forms of sexual harassment claims is that of constructive discharge. In this situation, the plaintiff is forced to leave the job as a result of the alleged sexual harassment. As stated above, loss of a job or economic benefits is no longer a requirement for maintaining a sexual harassment suit. Leaving the job, however, is indirect evidence of the severity ofthe harassment effects on the person. As with an harassment case, for the employer to be liable it must be shown that the employer either created or permitted the hostile work environment to go on with knowledge of its existence and effects on the plaintiff. Broomis vs. Regal Tube Co. (1987) 44 FEP U.S. 1119, Tomkins vs. Public Serv,Elec & Gas. Co. (1977) 568F.2d 1044, Muller vs. U.S. Steel Corp. (1975) 509 F.2d 923. Where the plaintiff is a minority, there is a possibility that the person was forced out of the job for both sexual and racial reasons. It is therefore possible to sue an employer for both racial and sexual discrimination and harassment. Miller vs. Bank of America (1979) 600 F.2d 211, Sexual Harassment and Race 8 Notre Dame J. of Legis 30. (1981).

In the situation of a discharge, once the complaint has set forth a prima facie case for sexual harassment, the burden of proof shifts to the employer to show that the discharge was for a non-discriminatory reason. Texas Dept. of Community Affairs vs. Burdine (450 U.S. 248, Miller vs. WFLI Radio, Inc. (1982) 687 F.2d 136. An employer need only show to defeat a sexual harassment claim that the discharge was “for good reason, or no reason, absent discrimination,” Tims vs. Bd. of Ed. (1971) 552 F.2d 551. The courts will determine based upo the evidence whether the discharge was the result of sexual harassment and the basing the discharge upon cause was merely pretextual. In Barnes vs. Callaghan (1977) 559 F.2d 1102, a discharge was found not be pretextual because theemployer documented repeated warnings for substandard work and gave the plaintiff a seven month trial period. Likewise in Lewis vs. G.M. Corp. (1977) 557 F.2d 1255 no sexual harassment or discrimination was found because the employer proved that discharge was only eleven citations for substandard work.

In determining whether sexual harassment has occurred, it often becomes necessary to investigate the plaintiff’s actions and private life. The United States Supreme Court in Vinson, supra held that evidence of the plaintiff’s sexually provocative speech and dress at the job is not inadmisissible because it relates to whether the sexual advances were unwelcome but should be weighed against the “potential for unfair prejudice” against the plaintiff’s case. Likewise in Henson vs. City of Dundee, supra, the court permitted testimony regarding the plaintiff’s affair with a co-worker as being relevant to whether the subsequent resignation was the result of a constructive discharge or other reasons. Some states, such as California, have enacted legislation which limit discovery in a sexual harassment case of a plaintiff’s sexual history to only the alleged defendant.

Sexual harassment cases are among the most defalcate to prove because it is often difficult to get the evidence to collaborate the plaintiff. Even so, this is no reason for courts to abandon the traditional concept of justice and award judgments without a preponderance of evidence on behalf of the plaintiff.

CHAPTER FIVE

DOMESTIC VIOLENCE

INTRODUCTION

One of the most newsworthy topics today is that of domestic violence. It has certainly become the politically popular topic of the 1990’s. The 1994 Federal Crime Bill continued the Violence Against Women’s Act and President Clinton created a Violence Against Women Department in the Department of Justice. The trial of O.J. Simpson for the 1994 murder of Nicole Simpson and her alleged lover Ronald Goldman focused national attention on domestic violence. The news media played almost daily for several months a 911 call made by Nicole in 1989 where O.J. Simpson broker into her home to scream at her for having sex with another man while their children were upstairs. Simpson did plead guilty to an battering Nicole in 1989 and as a result of that incident was the immediate prime suspect for Nicole’s murder five years later. The case of Nicole Simpson is an example of domestic violence, whether the victim is man or women. The victim in such a relationship seldom leave after the first beating. Often after a beating there is a period of reconciliation which the victim often states is the best and most loving part of the relationship. It is not uncommon for a complainant to withdraw a spousal battery complaint prior to trial.As a result, there are many judges which will jail a complaint who fails to prosecute or refuses to testify at the trial of her spouse on the complaint. In the Nicole Simpson case, even after their divorce and all that had occurred between them, according to some of their friends she wanted a reconciliation and shortly before her death and gone on a vacation with Simpson.

Domestic is said to be the most common type of all crimes even though the frequency of its occurrence is often arrived at by conjecture. Some feminist groups for instances have stated that as many as 90% of all women have been battered. Such a figure seems extreme and calculated to engender political support for an ideology of the victimization of women. The more realistic studies for domestic violence, nonetheless, provide alarming estimates for its occurrence. An article in the Nevada Trial Lawyers Association in NTLA Advocate (Nov. 1888) Domestic Violence Is A Crime stated:

“Domestic violence is one of the most common of all crimes. Acts of domestic violence occur every 18 seconds in the United States. About 1/2 of all couples experience at least one incident; in 1/4 of these couples, violence is a common occurrence. Twenty percent of all murders in this country are committed within the family and 13 percent are committed by spouses.

Most family violence is committed against women. Ninety-five percent of all spousal assaults are committed by men. Twenty one percent of all women who use the hospital emergency surgical service are battered.

Six million American women are beaten each year by their husbands or boyfriends. Four thousand of them are killed. Battering is the single major cause of injury to women more frequent than auto accidents, muggings and rapes combined. One in four female suicides were victims of family violence.”

The problem of domestic violence is great and should not be trivialized but any discussion of its should be based upon actual numbers. In Nevada, a state of about 1.25 million persons, from July 1, 1986 through September 30, 1987, there were 5,400 reports of domestic battery of which 3.904 reports resulted in arrests. In 1988, 4,033 women received temporary protective shelter in a domestic violence program. This tend s to translate into approximately 10,000 women per year turning to the government for assistance in Nevada for domestic abuse. Out of approximately 300,000 women that is one out of thirty or 3 percent which is a significantly less amount that estimated by most organizations.

The history behind spousal abuse had its basis in the English common law. Women throughout the middle ages were considered the property of the husband. Married women, themselves, while they had little rights also had little responsibility or accountability for their actions. If a women were to commit a murder, it was her husband who would be punished with prison or even death. In the J.W. Blackstone Commentaries (7th ed. 1775) the right of a husband to punish or beat a wife was explained as follows:

“For, he is to answer for her behavior, the law thought it reasonable to intrust him with the power of restraining her, by domestic chastisement in the same moderation that a man is allowed to correct his apprentices or children.”

Under the common law, a husband was permitted to beat a wife with a stick not thicker than his thumb. He was not permitted to cause severe injury or kill her. As stated above, the chastisement waslimited to that permitted under English law to be inflicted on children or apprentice employees.

The English law was carried over into New World and served as a basis for American law included the right of a husband to discipline a wife. The view, however, that women were the property of the husband, that man and women are one and the one is the husband, is no longer followed anywhere in the United States. As a result, beginning in the later half of the 19th Century, courts began rejecting the right of a husband to chastise a wife. Fulgham vs. State (1871) 46 Ala, 143, Powell vs. Benthall (1904) 136 N.C. 145. Today, the basis for a husband claiming a right to punish a wife for her behavior no longer exists anywhere in the united States. Today, in fact, a husband, is not even personally liable for the debts incurred that are not necessary for her or the family’s maintenance of life or support. Since a husband can no longer go to prison or face death for the actions of a wife, the husband has no vested interest to preserve by punishing or beating a wife for her behavior.

Today, it is clear that neither spouse may legally commit battery upon the other spouse. Spousal battery is a crime in each state. Despite the fact that spousal battery is a crime the question remains what rights a spouse may have beyond a criminal conviction. In this area, the law is far from settled or uniform and gender bias still remains as a force to be recognized. The Nevada Supreme Court’s Gender Bias Task Force’s Report, “JusticeFor Women” made the following pertinent recommendations:

“1. Judges, court administrators and district attorneys should provide leadership in promoting and encouraging community education programs designed to increase awareness of domestic violence issues.

2. Funds should be provided from the appropriate court of law enforcement budgets for the professional training of police, judges and attorneys about the prevention of and remedies for domestic violence…

4. Judges, when appropriate, should require that release of persons arrested for spousal battery be conditioned upon (a) no physical contact with the victim, and (b) no verbal threats to the victim pending resolution of the case…

6. Lay advocates from domestic violence programs should be permitted to participate in order to render support and non- legal assistance, unless their presence is found to be disruptive…

8. The judiciary and district attorney’s offices should strongly support measures that will provide public and private funding to support a permanent “Advocate” position… that will encourage the development and training of volunteers to provide assistance to victims of spousal battery in rural areas….

10. Committees composed of representatives of the courts, city and district attorneys offices, city and county law enforcement officers, and local domestic violence assistance groups should develop a written protocol regarding acceptable and recommended law enforcement responses. The protocol should be made available to all enforcement officers, prosecutors, judges, and others involved in the handling of domestic violence cases.”

These recommendations mirror today’s view that domestic is it the duty and responsibility of the legal profession to take a leading role in the abolishment of domestic violence in society.

The trend today is to prosecute spousal battery cases, when ever possible, even if the victim refuses to cooperate. Nearly 40% of all district attorney offices have implemented procedures andpolicies for taking cases to trial, even over the objections of the victims. Such prosecutions, no longer rest solely on the testimony of the alleged victim. Instead, the prosecutions, go forward over the objections of the victim when they can be supported by independent evidence such as 911 calls, eyewitness accounts and medical records. The key to successful prosecution is presentation of evidence to explain why a domestic partner, usually a woman, might lie to protect an abusive partner. The strategy was first pioneered by the District Attorney’s office in San Diego, California in the mid 1980’s. It has developed so well that it was chosen as the national model by the National Council of Juvenile and Family Court Judges. San Diego District Attorneys have trained police and prosecutors in 22 states on the implementing and use of the model. As a result of the tough prosection of battering cases in San Diego, the domestic murder rate dropped by 30 in 1985, the year of implementation of the policy to 20 in 1990 and only 7 in 1994. It is estimated that nearly 100 women are alive in San Diego in 1995 due directly to the successful development of the national.

1. CIVIL SUITS FOR SPOUSAL BATTERY

While a battered spouse may have the batterer criminally prosecuted, in many states, the battered spouse is prevented from suing the battered in for the damages suffered. The doctrine of spousal immunity was strongly affixed to American jurisprudence throughout the 1960’s. Under the spousal immunity theory, a married couple is considered to be one unit and the law does not permit aplaintiff bring an action against himself or herself. A suit of wife against a husband was considered a suit by herself against herself and was therefore barred. Another rational for the marital bar against suing a spouse for battery is a residue of the common law which held that such suits tended to destroy the marriage. In 1983, nine states, had enacted legislation which permitted an abused spouse seeking a protective order to sue the battering spouse for certain damages such as loss of earnings, out-of-pocket expenses and attorney fees, Alaska, California, Illinois, Maine, Massachusetts, Mississippi, New Hampshire, New York and New Jersey.

Under the impetus of the Women’s Movement, the lack of viability for maintenance of the interspousal immunity doctrine has been generally recognized. Today, spousal immunity has been abolished in most states. There were, as on 1988, only the District of Columbia and the following states retained some form of spousal immunity. Delaware, Florida, Georgia, Hawaii, Kansas, Mississippi, Missouri, Montana, Nevada, Ohio, Oregon, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington and Wyoming. In many of the nineteen states which still permit spousal immunity it is limited to unintentional torts. A spouse, in many of the remaining states, can sue a spouse for intentional torts such as battery. Texas: Bounds vs. Caudle (1977) 560 S.W.2d 925, Illinois, Kansas and Oregon. A few of the states which still retain spousal immunity hold that the immunity ceases once the parties or divorced or if one spouse dies prior to bringing the action. Sanchez vs. Olivarez(1958) 94 N.J. Super. 61, Pickens vs. Pickens (1970) 255 Ind. 119.

One confusing issue regarding suits for battery is in what court should they be brought. Many decisions have held that suits for spousal battery should not be brought in a divorce court and instead should be brought in a separate action. In Windaver vs. O’Connor (1971) 107 Ariz. 267, the court held that divorce action is a very specific type of legal proceeding which by its nature is not good one to try torts actions. Goldman vs. Wexler (1983) 122 Mich.App. 744 also held that a divorce action was not the proper place for bringing a tort action against a spouse. There are two reasons advanced for not permitting a tort claim to e tried in a divorce action. The first reason is that it often touches upon issues that would require a jury to be employed for their adjudication which is usually not permitted is a divorce action. Secondly, the trying of a tort action may have the effect of improperly influencing the alimony award for the battered spouse. Taylor vs. Taylor (1980) 378 So.2d 1352.

One of the most controversial aspects of civil suit for battery a raise in the area of spousal rape. Under the common law, there was no such crime as spousal rape. Therefore, one spouse could neither criminally prosecute or sue for civil damages the other spouse for rape. The interesting aspect of this spousal rape exemption was that some states would permit a civil suit for battery, as discussed above, as long as the battery was not therape itself. In other words, a husband could, in a few states, be sued for the damages for hitting the wife but not raping her. As of 1988, eighteen states had totally abolished the spousal rape exemption with the remaining thirty two states keeping a marital rape exemption for civil suits to some extent. Courts in Alabama, Florida, Georgia, Massachusetts, New Jersey, New York and Virginia have struck down the marital rape exemption by case law. Merton vs. State (1987) 400 So.2d 1310, Florida vs. Smith (1981) 401 So.2d 1826, State vs. Warren (1985) 336 S.E.2d 221, Commonwealth vs. Chretein (1981) 417 N.E.2d 1203, People vs. Liberta (1984) 64 N.Y.2d 152, New Jersey vs. Smith (1981) 425 A.2d 38, Weishaupt vs. Commonwealth (1984) 315 S.E.2d 847. Besides barring a spouse from persecuting for rape, fifteen states had laws barring rape persecution for a man living with a woman or between voluntary social companions. National Center on Women and Family law, Marital Rape Exemption: A State by State Summary (1987). The reasons often advanced against having a crime for spousal rape are the difficulty in proving lack of consent and, once again, the state benefit in preserving a marriage. Spousal rape is hard to prove by its very nature. The issue often turns upon consent. In such a situation, without supporting information it would be hard, if not impossible, to prove that the sex was not consenual and thereafter being made simply to punish the other spouse. For this reason many prosecutors have refused to prosecute spousal rape case unless there is a highdegree of corroboration or they will charge a lower degree of rape than a stranger rape case. In the same vein, some judges feel that a courtroom is the proper forum to adjudicate problems in family relationships. To help sensitize prosecutors and judges to the issues of spousal rape, the Justice department issued the Final Report, Attorney General’s Task Force on Family Violence (1984). The report concluded that prosecutors:

“must approach cases of family violence from a fresh perspective and be flexible and sensitive in dealing with the emotional complexities of the cases…

judges and the sentences they impose can strongly re-enforce the message that violence is a serious criminal matter for which the criminal will be held accountable.”

The report makes recommends that: that prosecutors maintain regular contact with the alleged victim so as to assure the person that the case is being prosecuted diligently, that judges impose bail conditions which keep the defendant away from the alleged victim and that, upon conviction, incarceration be imposed with work furloughs when family support is necessary.

The problems attendant in a spousal rape case were highlighted quite dramatically in classic spousal rape case, in 1993, of John Wayne Bobbitt in which his wife cut off his penis for allegedly raping her. Mr. Bobbitt was tried for spousal rape and found not guilty. This case simply pitted his word against the wife’s. The most telling evidence was an defense expert who testified that the wife’s panties were not ripped off her as she had claimed butinstead cut by a knife or scissors which tended to show she lied. In addition, her case was not helped when a former woman co-worker testified that she say that she would castrate her husband if she ever caught him cheating on her. Following, Bobbitt’s acquittal, the wife was prosecuted because she no longer had a valid claim of self-defense. The wife then claimed battered wife syndrome and was convicted of mayhem but was mentally incompetent at the time. As such, she was sentenced to a month of confinement for mental observation and when adjudged sane was released.

The issue of whether a battered spouse may now sue the batterer is now moot. The 1994 Federal Crime Act has a provision in it which permits a battered spouse to sue the battering spouse, in federal court for the battery. This Federal Crime Act supersedes all state laws and any state tort immunity which a spouse may have under state law. As such, a battered spouse may now sue for damages regardless of state law. This Act revitalized divorce attorneys who now have been using the threats of suits for domestic violence as settlement tools for property divisions for their clients. Of course, as with any federal action, in order to prosecute the action the attorney must believe that the action has merit or will be subject to Rule 11 sanctions.

2. STALKING LAWS

The FBI’s, “Uniform Crime Reports, Crime in the United States 13 (1988), contained statistics which showed that nearly 30% of all murdered women in the United states had been slain by either theirhusbands or boyfriends. Quite often the murder occurs after the women has left the man. It is the act of leaving the man which acts as the triggering event which results in the murder. It is to stop the cycle of violence that courts and legislatures have been looking at enacting new legislation and, more strongly, enforcing, existing laws. At the center of this review, are protective orders from the courts and the implementation of stalker legislation.

Traditionally, courts would issue a temporary restraining order to get a couple apart during a divorce. The restraining orders are usually quite easy to get and are often mutual which means both spouses must stay away from each other. The problem with a restraining order is that it usually only works against a person who is not violent and will obey the law. For a person, who is violent and because of the emotion engendered in the case is unable to appreciate the force behind the order, the order will not act to prevent violence. The violation of a TRO can result in being punished for either civil or criminal contempt depending upon the decision of the court. As a violation for criminal contempt, the punishment was usually limited under state law to that of a misdemeanor which usually a maximum penalty of six months in custody. In the past, the enforcement of TRO’s were given little priority by law enforcement agencies. the reason behind this is that the courts’ themselves often treated such violations as civil contempt which filtered dow to law enforcement as not as important as criminal matters.

The Nevada Supreme Court’s Gender Bias Task Force’s report, Justice For Women studied the problems encountered in enforcing protective orders:

“Forty-three percent of attorneys and judges who responded to the survey reported their opinions that victims of domestic violence whose lives are seriously endangered do not always receive protection order. The executive director of Temporary Assistance for Domestic Crisis, Inc. in Clark County, presented testimony at the Las Vegas hearing which indicates that it may take several days or a week to obtain a protection order in Las Vegas. According to the testimony, orders can only be obtained during business hours on weekdays. Domestic violence workers in Las Vegas could not remember a single case in which a batterer was ordered to leave the home in order to protect the women and children. Thirty-six percent of survey respondent expressed their belief that “never” or only “sometime” are orders granted directing the batterer to vacate the shared residence when a woman is in a shelter or otherwise out of the home.”

The Nevada Task Force also pointed out bias existing in judicial officials which often work to detriment to women:

“Another barrier to legal recourse by battery victims is the disfavor sometimes suffered in the courts by battered women who, at the time of trial, do not appear to have physically victimized. Fortyfive percent of all survey respondents indicated their belief that ‘at least sometimes’ battered women appearing in court are asked why they have no visible injuries; forty-seven percent of the responding lawyers and twenty-eight percent of responding judges share this perception. Personal testimony before the Task Force confirms these views. One expert witness testified that she witnesses a judge state that no pictures from her hospital visit or from CAAW’s record would be admissible in his courtroom. that (the victim) ‘looked fine’ now, so that the case would be thrown out and the charges dismissed.”

The Task Force report highlights the problems faced by women in sometimes being able to go to court or the district attorney’s office for relief from domestic abuse. The TRO is not always granted and therefore the women may be without legal recourse tokeep an abusive spouse from following or otherwise communicating with her. The results of will often have disastrous results. The woman will begin to feel alone and abandoned by the courts. Law enforcement will be less inclined to hear her complaints because a court has seen fit to dismiss her fears of spousal abuse. As a result, a woman could be placed at a heightened risk of violence the mere fact of having the TRO denied because the very act of bringing the TRO motion could further infuriate the person against whom it was sought. Adding to this, the fact that the TRO was not granted means that the person thus enraged can continue to follow and communicate with the woman without any type of law enforcement interference until a crime is committed.

In response to the mixed signals sent by the courts regarding the availability and enforceability of their protective orders and to stem the killing of primarily women by their former spouses or boyfriends, many states have now enacted stalker legislation. Under this type of legislation, if a person, regardless of sex, stalks or creates a reasonable belief of fear in another on impending danger, then that person has committed a felony. It is not necessary for the person to have violated a TRO in order for the stalking legislation to apply. In addition, some states have also made the violation of a TRO a crime in itself rather than leaving it to the court to determine if the violation of the TRO should be treated as civil or criminal contempt.

The stalking legislation is usually not limited to just thedomestic situation, although that is where most often it occurs. Celebrities, of both sexes, have also been stalked by people both of the same and opposite sex. For example, David Letterman was stalked by a woman who once broke into his home and insisted that she was married to him. Rebecca Shaeffer was slain by a man who had a delusion that she was in love with him, in addition Michael J. Fox and Johnny Carson were also staked by women. Stalking laws are designed to stop the stalker before a violent crime has been committed. Even politicians are stalked such when John Hinckley stalked and shot President Reagan. The Gannet News Service, Apr. 1992, Stalked by Strangers, Women Seek Protection pointed out that while 80% of all stalkers are men, 20%, one out of five, were women so that stalking is not a male only crime.

California, in 1990, enacted the first stalking law in Penal Code section 646.9 which became the basis for most other states’s stalking laws:

“(a) any person who wilfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear of death or great bodily injury of his or her immediate, is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year or by a fine of not more than one thousand dollars, or by both that fine or imprisonment.”

The California statute was implemented is response to the need to “provide law enforcement with the tools necessary to arrest (persons engaged in stalking) before they can make good on their threats” to injure the intended victim or family. Memorandum ofSenator Edward R. Royce to Senate Constitutional Amendments (April 1990). The California statute was initially drafted with the view of preventing stalking in a domestic relations setting but was expanded to cover all reasonable aspects of stalking.

By 1994, thirty five other states have followed California’s lead and have also adopted stalker legislation. Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin.

The fact that such a large majority of states have now enacted stalking legislation is proof of the fact that domestic violence is no longer to be tolerated. In reality the stalking legislation has the benefit of protection both the stalker and the victim. If a stalker is arrested prior to committing violence, then the stalker will obviously spend so time in jail but far less than if the stalker actually injured or murdered the victim wherein the stalker might be imprison for life or be sentenced to death, if a murder was committed. A stalking conviction might be considered as a court enforced cooling off period when the stalker is unable to emotionally permit the former spouse or mate to withdraw from the relationship. In such a situation, the incarceration of the stalker will result in no future stalking occurring after the release ofthe stalker because time has operated to help mend the emotional pain the stalker had felt when the former spouse or mate left. When viewed in this manner, incarceration may not only be for the benefit of the intended victim but for the stalker as well.

CHAPTER SIX
GENDER BIAS IN THE CRIMINAL COURT SYSTEM

INTRODUCTION

Gender bias in the legal profession has not been limited to just the law office to domestic relations. Women commit crimes as well as men but their treatment in the criminal justice system is often markedly difficult than accorded men convicted of the same offense. In almost all situations, gender bias in the criminal setting works to the benefit of the woman. Inn other words, criminal women get better treatment and sentencing than men as a result of reverse gender bias. One of the best example of this was in the JOHN WAYNE BOBBITT case. Mr. Bobbitt’s wife has cut off his penis in an effort to castrate him claiming at first, it was a act of defense for spousal rape. Mr. Bobbitt was tried first and found not guilty at a trial where numerous inconsistencies were brought. Mrs. Bobbitt was then tried on a lesser charge. After raising the battered wife defense, she was found guilty but mentally incompetent at the time. The sentence was a month of confinement for mental observation before being released. The difference between this case and what would have happened had a man mutilated a woman is clear. When a man attacks a woman or rapes her under the influence of alcohol, upon conviction he is never released from jail after serving a month and being declared sane.

Another classic example of gender bias in the criminal courts system in the area of statutory rape. Most states have laws whichhold that it is statutory rape for a male to have sex with a woman below the age of 18 years but there is no similar protection to boys. In most states, statutory rape is a strict liability crime, such as in Nevada, and therefore even if the woman lies about her age and tricks the man into having sex, that is no defense and he can still be prosecuted. In California, a boy of 16 years of age was convicted of statutory rape of his 17 years 9 month old girl friend even though the sex was consensual, the idea of sex was hers and she furnished the condom. The girl friend was not charged with any crime whatsoever. In a minority of states, such as California, permit a defendant in a consensual statutory rape case to argue reasonable mistake of the woman’s age as a defense. It is the feeling as, enacted in the laws of most states, that young boys will never be sexually preyed upon or misused by older women and therefore do not the protection of the state which is, in itself, a blatant case of gender bias.

The differences between how men and women are treated in the criminal justice system has its roots in the Victorian system of beliefs which held that women were morally much better than men. As such, they were almost never thought to be able to commit the violent crimes of which men were capable and lesser crimes only in the most dire of circumstance. This classic example of this view was in the Lizzie Borton murder trial of her parents. Lizzie, who was born and raised into a Victorian home, was charged with killing her wealthy father and mother. Despite what would normally beconsidered overwhelming evidence, an all male jury would not convict on the belief that no proper woman would kill be parents especially in the gruesome manner in which they had been slain. This killing has engendered more introspection and analysis of the treatment in the judicial system that any other ever held. Books, movies and stage plays have been written to highlight and attempt to explain the biases and beliefs of highly respected and independent men which prevented them from believing that a woman was incapable of murder.

It has long been recognized that women defendant’s receive preferential treatment in the criminal justice system. In “Female Criminality”, 3 Nat’l Probation and Parole A.J. 1 (1957) it was held that “our society is disproportionately soft on the female offender throughout the whole legal process. This represents a male dominated society’s showing deference to the symbol of woman…” The desire, impetus or bias to continue to afford women preferential treatment in the criminal justice system is changing in large part due to the increasing number of women defendants appearing in courts. Society has been changing over the last few decade and so has the woman criminal. Today, for example, in Los Angeles, there are women’s gangs that are just as involved in criminal activity and gang violence as are male gangs. From 1960 to 1974 for instance, arrest statistics showed that women arrests for women crimes increased from 10.9% of all such arrests to 19.4%. Women Offenders: Myth vs. Reality, The Female Offender (1976). Itis this increasing influx of women, more than any other factor, which is forcing a reevaluation of how women are treated in the criminal justice system. If the preferential treatment afforded women is ineffective in halting feminine crime then the arrest for abolishing such preferential treatment is strengthened. It is only by studying the effects of gender based sentencing and treatment in the criminal justice system can the propriety of continuing such preferential treatment be evaluated. Several studies on gender based treatment have been conducted which together show that gender based bias exists throughout the United States. The major reports are a 1971 california study, The Influence of Social and Legal Factors on Sentence Disposition 4 Journal of Criminal Justice (1976) and a 1974 study of seven judicial districts in Alabama. Alabama Law Review Summer Project 1975: A study of Differential Treatment Accorded Female Defendants in Alabama Criminal Courts.” 27 Alabama Law Review 676. It is the research findings of these reports which are discussed herein.

1. SENTENCING

The major compliant hurled against the Alabama study is that it draws its data from Alabama and is therefore lends itself to a regional analysis only. This argument is only surface deep. The Alabama study by its makeup has both rural and urban counties to provide a standardized model. In addition, Alabama has both very poor and very well to do cities. The California study was basedupon 32,964 felony arrests from twelve Northern California counties during the period from 1969 to 1971. The California study evaluated the data on the basis of disposition and length of sentence. The California study created two categories for its results. The Bivariate category analyzed the date based only on sex and the sentence imposed on the person. The Standardized category took into account the variables of charge, prior record of the defendant and criminal status. When combined with the California study, the two reports create an excellent representative model for the nation at a whole. Together, the two studies provide an excellent analysis of the ingrained prejudices and bias which compose the gender bias present in the criminal justice system.

The National Advisory Commission on Criminal Justice Standards and Goals, Report of Corrections (1973) reported that 30 times and many women as men were in state prisons. In Alabama, for instance, in 1974 there were approximately 4,000 inmates of which only 120 were women. The director of the Alabama Pardons and Parole Board actively looks to for ways to grant women parole more so than for men. The Alabama study demonstrates, in Table One, that men are sentenced to jail or prisons terms of between one half and twice as long as women for similar offenses.

END OF SAMPLE VIEW

PART TWO

ELIMINATION OF SUBSTANCE ABUSE IN THE LEGAL PROFESSION

INTRODUCTION

As attorneys we are all aware that under the Canons of Professional responsibility, an attorney should never represent a client when our abilities, both mental and physical, are being impaired by drugs of any type. It does not make any difference if the drugs that are causing the problem are legal or illegal. As long as the attorney is affected, the attorney cannot provide good competent legal services to the client. For that reason, an impaired attorney is not permitted to represent the client. California goes much further in how it punishes attorneys for substance abuse as evidenced in how it treats drunk driving attorneys. A California attorney, who receives a second drunk driving conviction, risks losing the license to practice law. In fact, a second D.W.I. conviction for an attorney usually will result in the bar license being lifted unless the attorney enters and completes some drug treatment program. In addition, the attorney will usually be required to take courses in professional ethics as well. All of these sanctions for drunk diving will be imposed regardless of whether or not the drunk driving had anything to do with the furnishing of legal services to a client.

The treatment and sanctions imposed against an impaired attorney often will be determine by the circumstances of the case.In California, for example, if an attorney is drunk in the law office and gives advice to a client which is correct, then the attorney has not violated the canons of professional responsibility because his advice was correct and therefore was not impaired mentally. Yet, if the same attorney gets in a car, subsequently gets pulled over and blows a .11 on the alcohol breath test, the attorney is guilty of drunk driving. Furthermore, the attorney could be susceptible for disciplinary action, not for any improper or impaired advice given to the client, but because the attorney had operated a motor vehicle at .01% of alcohol above the legal limit. The argument is that the attorney was knowingly breaking the law by driving with that high elevation of alcohol and he is being punished for that because an attorney is not supposed to violate the law. Many attorneys feel that disciplinary action against an attorney for acts that do not relate to the law or which do not evidence moral turpitude should not be the basis of a disciplinary action. Many attorneys therefore feel that the drunk driving action should be related to the practice of law in order for there to ne a disciplinary action. This view, while once the majority view is becoming, if it has not already, become the minority view. Many states, follow the California example, and discipline attorneys for drunk driving convictions. The trend is now to discipline an attorney for any criminal violation, regardless of how trivial. As such, an attorney using an illegal drug will usually be disciplined regardless of the fact that the drug usage had noeffect on the attorney’s practice of law. In addition, drunk driving or any other alcohol related crime will usually also expose the attorney to disciplinary action regardless of whether the alcohol affected the attorney’s practice of law.

As a practical matter an attorney is not allowed to use illegal drugs and just by having them, the attorney will be exposed to sanctions. When an attorney is using legal drugs, the attorney has to be careful that the usage does not adversely affect the attorney’s practice of law. Substance abuse, involving drugs, in the legal profession covers not only the use of the drug, but also its sale. The penalties for drug use are less than for actual sale or dealing in a drug. There have been cases on both sides in which attorneys have been disciplined. The Colorado Supreme Court in May 1992, suspended attorney, Lawrence David Rhodes, for three years after entering a guilty plea in the El Paso County District Court to one count of distribution of a controlled substance, cocaine. COLORADO LAWYER (Aug. 1992). The court concluded that the distribution of cocaine is a serious crime as defined by CRCP rule 241.16(E), and also agreed that the attorney’s conduct violated Disciplinary Rule 1-102(A)(6), engaging in conduct that adversely reflects on his fitness to practice law. This case, highlights, the situation where the act itself, drug distribution, did not have anything to do with the practice of law, but the attorney is sanctioned for violating the law because as an attorney he is held to the high standard of not doing anything that appears to beimproper. This is the semblance of impropriety rule or an act constituting moral turpitude. In this case since the attorney did plead guilty to distributing cocaine, the court used a criminal conviction for a major felony, as just about every other court will, as grounds for professional discipline.

In another Colorado disciplinary case, attorney Richard Arnold Anderson was suspended for three years, in part, because of his failure to report to the court that he had a 1983 conviction for driving while his abilities were impaired. COLORADO LAWYER (July 1992). In other words, this appears to be nothing more than a drunk driving incident, but since the attorney did not report it, the court combined that fact along with other instances of alleged misconduct. Again, this tends to highlight the fact that substance abuse should also cover alcohol as well as drug related offenses.

A couple of years ago in a widely publicized case in which a federal attorney, who was assigned to prosecuting drug cases, was arrested and charged with various drug crimes because he was hooked on cocaine, and to satisfy his habit, he was using the cocaine seized in cases that he was handling. As a result, some of his convictions had to be overturned and it was quite a mess. It certainly affected him as well. The former prosecutor ended up going to prison and losing his license on top of it. The importance of this case was not in the fact that prosecutors are treated the same as regular attorneys. Instead, its significance arose from that fact that even a drug prosecuting attorney, who daily dealtwith drug criminals was unable to prevent himself from becoming addicted and was unable to stop himself from stealing drugs in his possession as evidence in his cases for his own personal use. This case shows how quickly as person can lose all ability to make moral judgments when under the onerous influence of drug addiction.

Attorneys and judges, while members of the legal profession, are as susceptible, if not more so, to turning to alcohol or drugs to alleviate the pressures of their profession. Attorneys, and particularly trial attorneys, have always had a higher than average incidence of alcoholism than in society as a whole. The pressure to win and do the best job possible for the client leads many attorneys to turn to stimulates, such as drugs, to do their job and then further drugs or alcohol to come down from the high and be able to relax. The yolo effect of this cycle of drug abuse grows steadily worse until the person is unable to function without a daily dosage of drugs. Substance abuse, whether from alcohol or drug, which results in an attorney’s addiction, is today recognized as a illness. Even so, substance abuse is not a defense to disciplinary action for improper representation. An attorney who voluntarily closes an office so as to obtain treatment will have that factor taken into consideration in any disciplinary action for mitigation but it will not stave off such an action altogether.

In order to understand substance abuse in the legal profession, it is necessary to first understand what substance abuse is and how it affects individuals. To help achieve thisunderstanding, substance abuse is discussed first in general terms and then later on in more specific terms with a final discussion on the treatment modes available to attorneys. To fully understand substance abuse in the legal profession, legal professionals must understand the effects on substance abuse both on them and their families. Substance abusers often abuse their families and have higher instances of debilitating and life shortening diseases. All of which tend to seriously affect the competency and ability by which the attorney or judge performs his or her professional duties. Another aspect of an attorney’s alcoholism is that law firms may not wish to employ the attorney due to the potential health costs which usually are incurred by an alcoholic employee. This book strives to educate attorneys of the effects of both alcohol and drug abuse both financially and morally on society and legal profession.

CHAPTER SEVEN

ALCOHOL ABUSE

The most commonly abused drug is the legal drug of alcohol. In government statistics for substance abuse alcohol use is usually not considered. In fact, most studies on substance abuse are concerned only with the use of illegal drugs such as heroin, cocaine and the like. If alcohol use were to be factored into the studies then the numbers would go up quite considerably. There is also a relationship between the victims and assailants in drug related homicides. In 1984 in New York City, 24% of all homicides victims between the ages of 31 and 40 years were related to drugs. In addition, eighteen percent of the assailants in those cases, were related to drugs. In the terms of sex, 90% of all 1984 New York City homicides involving male victims were drug related and only 10% percent of the female victims were drug related. Along ethnicity, 42% of all black 1984 New York homicides involved drugs, and 49% of Hispanic deaths involved drugs as well. What this tends to point out more than anything else is that people will commit crimes in order to pay for their drug habits.

In “The Economic Costs of Alcohol Abuse and Alcoholism -1975, Final Report to the National Institute of Alcohol and Alcoholism, 1977, it was concluded that alcohol abuse cost America $43 billion in 1975. Adjusted to present value, in 1994, the figure would be in excess of $120 billion. The major costs were in loss of production,nearly $20 billion and increased medical services another $13 billion. Motor vehicles accidents also accounted for another $5 billion. The effects of alcohol abuse span all of society. Legal professionals are not immune from alcoholism or its effects. Judges and attorneys can also be alcoholics and as such add to the loss of production and increased medical costs endured by society at large.

The National Institute on Alcohol Abuse and Alcoholism (NIAAA) commissioned the Rand Corporation to issue a report on alcoholism in the United States, The Rand Report published as Alcoholism and Treatment (1978) by John Wiley & Sons. Inc. One of the most interesting conclusions of the Rand Report was that treatment can be effective. The report found that untreated clients had a “natural” remission of around fifty percent whereas clients involved in treatment programs such as Alcoholics Anonymous (AA) or more formal programs had a remission rate of seventy percent. Alcoholism is not viewed as a disease that can be cured but only one in which the cravings can be placed into remission. Remission in the report was defined as including both abstention and “normal” social drinking not to intoxication. The report was unable to establish a pattern of treatment which would be effective for all alcoholics. The study concluded that treatment should be tailored to the individual needs of each person. A second Rand Report was issued in 1980 The Course of Alcoholism: Four Years After Treatment often referred to as Rand Report II. The second report confirmedthat some alcoholics were able to resume social drinking buy, in general, the report was less optimistic that the earlier report. The second report, for the first time identified two types of alcoholics. The first type of alcoholics were those under the age of 40 and were less likely to relapse into alcoholism if they resumed social drinking. It was concluded that alcoholics under the age of 40 who attempted total abstinence were more likely to have a total relapse that those alcoholics under 40 who engaged in social drinking. For alcoholics abbe the age of 40, the report concluded that total abstinence was the best treatment procedure. In making its conclusions, the report considered that the social pressures to drink in persons below 40 years of age are such that for younger persons it is better to have a social drink than total abstinence and risk the falling off of the wagon. In short controlled drinking in younger alcoholics may be better than a total abstinence. The second report found that four years after the original study 46% were in remission (28% of whom were abstaining and the remaining 18% engaging in controlled drinking). Only 15% of the original group had been in continuous remission for the entire four year period meaning 31% of the above 46% have fallen off the wagon at least once during this period. Of the original group 54% were still having alcoholic problems four years after the end of the first study. The second report found that men were better at total abstinence (57%) than women. It was found in the second report that regular attendance at AA meetings gave a person thebest chance of recovery but it was no guarantee against a relapse. Alcoholics Anonymous (AA) members who attended infrequently were found to have a higher rate of relapse than a person who never attended AA. The highest rate of relapse occurred most often within the first six months of entering the AA program. As with the first report, the second report was unable to recommend any one general treatment for all alcoholics.

The perception of the alcoholic is male. In reality, however, it is women who are often most affected by the worst effects of alcoholism. In The Invisible Alcoholics: Women and Alcohol Abuse in America, Marian Sandmaier pointed out the severe effects of alcohol on women. Although not widely known, a third of all alcoholics are women. Society does not accept a women’s drinking on the same par as a man’s. A drunken man may be viewed with distaste by universally a drunken woman is viewed with shame and a degree of disgust. This of course, would be the same view for a drunken woman attorney or judge. Within the last twenty years, the percentage of alcoholic women has been increasing faster than that of men. In 1939, the percentage of women drinkers in the United States was 45% which increased to 66% in 1981. From 1974 to 1981, the number of women drinkers increased 5% whereas the number of male drinkers actually reduced 2%. Given the trends in woman drinking, by the year 2010, it is estimated than women will he a full half of all drinkers. As the number of women drinkers increased so has the number of women alcoholics. In AA, the number of women rose from22% in 1968 to 29% in 1977 and 32% of all new members between 1974 and 1977. In addition to more women drinking than before, they are also doing it earlier. In 1968, only 15% of teenage girls admitted drinking whereas in 1974 the percentage had jumped to 54%. Women, more so than men, tend to use prescription drugs such as tranquilizers than are men. The use of the two tend to create in women alcoholics a dual dependency both on alcohol and drugs which makes it difficult to break the alcoholic addiction. A survey of AA members in 1977 disclosed that 29% of the women as compared to only 15% of the men were addicted to drugs in addition to alcohol. In addition, of the new AA members of 30 years of age and under, a full 55% of the women as compared to only 36% of the men were dually addicted, The Invisible Alcoholics. Alcohol has even more deleterious effects on women than it has on men. Blood level concentrations are higher in women than men for the same dose of alcohol due to women’s higher fat content. Alcoholic women have higher gynecological and obstetrical problems than ordinary women. Alcoholic women also have a higher number of miscarriages and hysterectomies in addition to infertility problems. In addition, alcoholic women have a significantly higher susceptibility to cirrhosis of the liver than men. The progression of alcoholism in women is significantly faster than in men. In men, alcoholism tends to be a slow disease taking up to 15 years top fully develop. In women, however, alcoholism tends to fully develop in just a few years. In women, depression tends to foreshadow a drinking problemsfar more often than in men. In short, women, are more susceptible to men to becoming alcoholics and given the approaching equality in the number of men and women drinkers, it is projected that within twenty years the number of alcoholic women may actually exceed the number of alcoholic men.

An interesting aspect of alcoholism is its effect on homosexuals. In “Alcoholism: The Dark Side of Gay”, The Magazine 6, no 3. (1980) it was estimated that 25% of homosexuals were alcoholics as opposed to only 10% of the straight population. In Los Angeles County, a 1975 study concluded that nearly one-third of all homosexuals in the county regularly abused alcohol. One of the reasons advanced for the higher alcoholism rate was the life of homosexuals. In “Introductory Address to the National Council on Alcoholism Forum Session on Alcohol Abuse in the Gay Community,” NIAAA Information and Feature Service, no. 75 (1980) it was estimated that homosexuals visit bars 19 times per month and have an average of six drinks per visit. The profile of the average homosexual alcoholic is someone in the mid-30’s and having engaged in heavy drinking for at least ten years. In The Invisible Alcoholics it was concluded that lesbians appear to have more problems with alcohol than gay men. A study of gay men versus lesbian women showed that 35% of the lesbians had problems with alcohol as opposed to 5% of straight women and 28% of gay men.

Chronic alcoholism has many permanent or long lasting effectson an individual. One of the most noticeable effects of alcoholism is the effect which it has on the memory. Two researchers Ben Morgan Jones and Marilyn K. Jones conducted studies on alcohol impairment on two groups. One groups received a high dose of alcohol and the other group a low dose of alcohol. After each dose, each member was shown a list of 12 items and tested on their ability to recall them. Those persons given a high dose of alcohol (1.04 grams of alcohol per kilogram of body weight). It was found that both groups had about equal ability to recall, after the lists were taken away, what they had seen as an immediate memory test. It was, however, found that the high dosage members had significantly poor short term memory than the low dosage group in that five minutes after the lists were taken away the low dosage group was much better at recalling the items on the list. One of the most frequent complaints of chronic alcoholics is poor long term memory. Chronic alcohol abuse has severe long term and permanent effects on the brain. One of the most common organic effects of chronic alcoholism is KORSAKOFF’S PSYCHOSIS (KP) which is characterized by confusion and memory failure. In addition, KP can also evince symptoms of time disorientation, emotional insight and loss of insight. The effects of KP generally only affect a person after years of steady long term heavy drinking. Under KP, immediate memory recall is essentially unimpaired while both short term and long term memory is evenly effected. The effects of KP are not reversible although treatment is generally through nutritionalsupplements. Alcoholics with a history of heavy drinking for ten years or more often fare significantly worse on performing abstract tasks than non-alcoholics. In addition, there appears to be an age correlation to the severity of KP in that age seems to increase the effects of KP. It has been found that alcoholics of 50 years of age with ten years of heavy drinking have significantly worse memory recall than alcoholics of 40 years of age who also have ten years of heavy drinking. Women, in particular, are severely afflicted with memory problems resulting from alcohol. The research of the Jones’ disclosed that as a woman gets older alcohol will have greater on memory ability which leads to the conclusion that cognitive impairment in women, as the result of alcohol, increases with age. In the legal profession, memory loss and impairment of mental capacity is extremely hazardous to the practice of the profession. Attorneys who can not read and retain the information necessary long enough to prepare a case or draft necessary document preparation, will invariably make errors that will both harm their clients’ interests and expose themselves to claims of malpractice. An attorney lives by his or her memory. If legal knowledge is lost or inaccessible as a result of alcoholism, then the person has lost the ability to practice law effectively.

One of the most important impacts that alcoholism has upon a person is to effect the person’s employability. While many states and the Federal Government though the Federal Rehabilitation Act and the American with Disabilities Act consider alcoholism as adisability. As such, there can not be discrimination in employment based upon the alcoholism unless the employer is unable to reasonably accommodate to person’s alcoholism. Nonetheless, as a practical matter, employers do not like to hire alcoholics and avoid it whenever they can do so. In today’s job market, it is relatively easy for an employer to hire a person who is not an alcoholic. As such, the employer can usually justify hiring a non-alcoholic over an alcoholic as long as the non-alcoholic employee has the same qualifications as the alcoholic. One of the main reasons why employers do not wish to hire alcoholics is usually the increased medical problems which afflict alcoholics. The result is that an employer’s medical insurance increases substantially when there are alcoholic employees. Alcoholics are susceptible to many more diseases than non-alcoholics. Among the most common diseases afflicting alcoholics are some of the most expensive diseases to treat such as cancer, cirrhosis and hepatitis. The risk of cancer, in several different forms, increases substantially among alcoholics. The risk of alcoholics for both acquiring and dying from cancer of the mouth, pharynx, larynx, esophagus, liver and lung is increases as a person’s consumption increases with the highest risk being born by the alcoholic. In the United States, studies estimate that between 6.1% and 27.9% of all cancer cases are related to alcohol, The Encyclopedia of Alcoholism, Robert O’Brien (1982). Alcohol, by its own nature is not a carcinogen in itself. Rather, it is considered a co-carcinogen a substance thatwill speed up the development of cancer in the present of another carcinogen. It is estimated that a person who both drinks and smokes heavily runs a 15 times grater chance of developing some form of cancer than a person who does not drink or smoke. As such an alcoholic who smokes runs a far greater risk of developing cancer than an alcoholic who does not smoke. The most noticeable cancers are in the mouth, pharynx, larynx and esophagus. In fact, between 60% and 80% of the cases of esophagus cancer involve persons with a history of serious alcohol abuse. A 1977 study in France concluded that esophageal cancer for person who both drink and smoke heavily is 44 times greater than for persons who neither drink or smoke. The study also found that the rate was only 18 times greater than persons who simply drank heavily and was only five times greater for heavy smokers. This study confirmed the fact that for esophageal cancer, alcohol was a co-carcinogen. One of the organs most affected by alcohol is the liver. Alcoholics have a much higher incidence of primary liver cancer, hepatoma, than non-alcoholics. The Third Special Report to the U.S. Congress on Alcohol and Health concluded that between 64% and 90% of all deaths involving primary liver cancer were related to alcohol. The report raised the premise that primary liver cancer has two stages.The first stage is actual damage due to alcohol abuse and the second being actual malignancy caused by a secondary carcinogen acting upon the damage caused by the alcohol. A disease closely associated with alcohol is cirrhosis of the liver. Usually, cirrhosis appearsas a companion disease to primary liver cancer. Cirrhosis is the most widely known alcoholic disease. Cirrhosis is defined by the U.S. Dept. of Health as “a chronic inflammation disease of the liver in which functioning liver cells are replaced by scar tissue.” Cirrhosis results in the formation of fibrous tissue and nodule formation in the liver which impedes its functioning. While cirrhosis can be caused by any injury to the liver its primary cause is that of chronic alcohol abuse. Cirrhosis, when caused by alcohol, takes between five and seven years of steady drinking. As cirrhosis develop, liver cells are slowly being replaced by scar tissue. The scar tissue is unable to do the work of the replaced liver cells which results in a reduced liver function. Liver damage due to cirrhosis is irreparable. Cirrhosis affects approximately 10% of alcoholics. There is a genetic factor involved in the development of cirrhosis in that different ethnic groups develop the disease at different rates. The Fourth Special Report to the U.S. Congress on Alcohol and Health documented that American Jews have a lower than average rate of cirrhosis whereas American Indican have a much higher rate of incidence. Cirrhosis mortality among blacks is almost twice that of white people with the rate for urban black males increasing to a 10 times than of similar urban white males. Women seem to be even more susceptible to cirrhosis than men. A study reported in the British Medical Journal concluded that cirrhosis was changing from a disease of predominantly middle-aged and elderly men to a predominantly feminine disease. Between 1970 and 1977, the report showed that the number of women admitted to British hospitals for cirrhosis increased by four times. There is no successful treatment for cirrhosis. Only by complete abstinence can a person afflicted with cirrhosis have a chance of long term survival. A study reported in The Encyclopedia of Alcoholism showed that the five year survival rate of those with portal cirrhosis, the most common type afflicting alcoholics, was only 63% for total abstainers while only 40.5% of those who continued to drink survived five years.

One of the most tragic aspects of alcoholism is the effect it has upon those closest to the alcoholic. The person, who suffers almost as much as the alcoholic, is the alcoholic’s spouse. The FBI’s Uniform Crime Reports discloses that 25% of all murders are intrafamial affairs and that 12% of all murders are spousal killings. In 1978, researchers M.A. Stuart and C.S. de Blobs disclosed in a paper “Is Alcoholism Related to Physical Abuse of Wives and Children” that 65% of mothers who had abused their sons had themselves been abused by their husbands. Alcoholism has been shown to have a direct effect of family violence. In The Vicious Circle of Alcoholism and Family Violence, Alcoholism 1, no 3 (1981) it was estimated that between 60% and 80% of all cases of family violence involve alcoholic drinking either before or after the incident. As the amount of alcohol a person drinks, the greater wasconcluded the possibility of family violence. The pattern of alcoholism and family violence often repeats itself in succeeding generations. An alcoholic abuser often is seen as drinking and abusing their spousal and children as a means to reassert some degree of control in their lives. Spousal violence is documented to increase in bad economic times and among families in financial problems. To treat an abusive alcoholic, it is necessary to involve the entire family in order to resolve deep seated feelings and hostility which might otherwise sabotage the treatment.

Besides the devastating effect alcoholism may have upon a person, it also has a severe effect of the alcoholic’s children. The effects of a parent’s alcoholism on a child is especially insidious. In A Dangerous Pleasure by Geraldine Youcha (1978), studies were covered which concluded that a child’s pattern as an adult will often mirror that of the parents. The daughters of alcoholics appear to be especially vulnerable to becoming alcoholics themselves. Between 20% to 50% of the daughters of alcoholics become alcoholics themselves. In addition, many daughters of alcoholics will marry an alcoholic even if they themselves are not alcoholics. In Dangerous Pleasure, it was noted that, in a West coast chapter of Al-Anon, an alcoholic treatment program, one half of the women spouses of the alcoholics undergoing treatment had themselves an alcoholic parent. The children of alcoholics are often in a state of confusion regarding their places and expected conduct in the family. Often in the alcoholic family,the alcoholic parent vacillates between being an kind caring parent to that of an abusive monster. The children, in such a family, often develop special coping techniques that leave them dysfunctional in society. In fact, even if the alcoholic parent subsequently sobers up, the relationship with the children often does not improve or does so at an extremely slow rate.

Another effect of a parent’s alcoholism on a child is that of child abuse. It is estimated that at least 20% or 200,000 of the one million per year cases of child abuse and child neglect are the result of alcoholism. the FOURTH SPECIAL REPORT TO THE U.S. CONGRESS ON ALCOHOL AND HEALTH concluded that alcohol is a factor in as many as one-third of all child abuse cases. One of the interesting side effects of an alcoholic parent on the cycle of child abuse is that appears generational. A study conducted by Lt. Cdr. Daniel W. Behling of the Naval Regional Medical Center, Long Beach reported that 63% of abused children had at least one grandparent who was an alcoholic or otherwise alcohol. One form of child abuse is that of incest. The National Study on Child Neglect and Abuse Reporting in Denver, Colorado concluded that alcohol was a factor in one-third of all father-daughter incest cases. The counselor at one alcohol treatment program has stated that half of the women involved in the program had engaged in incestuous affairs with their fathers or brothers.

The most widely known aspect of alcoholism is the dependenceand addiction which it fosters. The dependence takes its most visible form in delirium tremens also known as the D.T’s. Delirium tremens makes its appearance in the final stage of withdrawal from alcohol following a long period of heavy drinking. Delirium tremens is a form of alcohol psychosis the symptoms of which can include visual and auditory hallucinations, confusion, disorientation, agitation, restlessness and insomnia. The D.T’s last for between three and four days. Sedation is sometimes an option only very conservatively because any sedation sufficient to mask all symptoms will severely suppress the patients respiratory functions as well.

During the period of the D.T’s, the patient is essentially unable to work. This would be especially true in the legal profession wherein a judge or attorney suffering through the D.T.’s would be unable to make the reasonable thoughtful decisions needed on a moment to moment basis to try a case, render a judicial decision or handle a client’s legal matter. In addition, a legal professional suffering from D.T’s would usually be short tempered and may mistreat or insult staff, clients, co-workers or other professional all of which would tend to demean the profession and would expose the person to disciplinary actions.

One of the most appalling aspects of alcoholism is that it has a tendency to promote suicide. Every study taken on alcoholism and suicide shows a strong correlation between the two. In “Mortality Among Female Alcoholics”, Scandinavian Journal of Social Medicine 3 (1975), it was reported that female alcoholics have a 30 timesgreater likelihood of committing suicide than the general population. Studies have also shown that alcoholics attempt suicide more often than alcoholics. Between 15% and 64% of all persons making an unsuccessful suicide attempt had been drinking shortly before the attempt. Alcohol was a factor in 80% of all successful suicides. A Duke University medical Center study showed that 26 of the 29 persons attempting suicide were intoxicated at the time of their suicide attempt. The presence of alcohol in so many attempts and even more so in the suicides shows that alcohol clouds the judgment and removes the inhibition against suicide. In “Alcoholism and Mortality” Population Trends 7 (1977) it was shown that, in general, women attempt suicide more often then men but that men were more often successful in their attempts. The figures for attempted suicides among alcoholic women are alarming. Alcoholic women attempt suicides more often than non-alcoholic women and their rate of actual suicides is 23 times that of the general population. In short, while men are more successful at suicides than women as a whole, alcoholic women are more successful, as a subgroup, than men in committing suicide. This propensity among alcoholics to commit suicide should always be born in mind especially by alcoholics. Legal professionals are not immune from alcoholism and its effects, including suicide. In addition alcoholic women, even though they may be attorneys or judges, have a higher risk of attempting and completing a suicide. Knowing the potential risk of a suicide among such legal practitioners shouldprompt employers and co-workers to suggest alcohol treatment and counseling. In addition, if the person is depressed special attention should be paid to the person because on of the effects of alcohol is to magnify such feelings of depression which often results in a suicide attempt.

1. ALCOHOLISM IN THE LEGAL PROFESSION

The legal profession is not immune from the effects of alcoholism. In fact, given the stress generated in litigation it is hardly surprising to find that there is a large alcohol problem in the legal profession. In 1986, it was estimated in Cocaine Blues, 72 A.B.A.J. 25 that between forty percent and sixty percent of all disciplinary cases involved alcohol or chemical dependency in some form. In addition to alcoholism on the part of attorneys, there is also the problem of alcoholism with employees. Lost of productivity is a main characteristic of alcoholism. yet, with many Federal Acts to ban discrimination the firing of an alcoholic employee is difficult. The Federal Rehabilitation Act and the American with Disabilities Act both recognize alcoholism and drug addiction as handicaps. Since both alcoholism and drug addiction are protected disabilities, a person who is an alcoholic or drug addict can only be fired if, after the employer makes attempts to make a reasonable accommodation to the person, it is found that the alcoholic or dug addict still can not do the job properly. In the legal profession, having an alcohol or drug impaired attorney or staff member on board is similar to a ticking time bomb. Unless the person getstreatment the person will get worse and will eventually commit acts which will expose the employer to a malpractice claim.

Alcohol affects an attorney’s judgment. A large portion of the disciplinary actions imposed against attorneys involved improper actions by the attorney when the attorney was impaired by alcohol or drug use. One of the major instances of discipline is improper trust account management resulting from alcohol impairment. Attorneys are in a position through their clients’ trust accounts that they can raise money through unscrupulous means as a result of their loss in judgment. Another case in which an attorney was disciplined involving the use of alcohol involved attorney Kenneth A. Senn, in which he was publicly censored for having fired a gun over his wife’s head while he was drunk, COLORADO LAWYER (June 1992). Mr. Senn was under alcohol influence as opposed to drug influence, but nonetheless the resulting criminal activity involved was such that it stemmed from his lack of control. The above instances are more related to situations where the attorney becomes drunk or otherwise disabled and can’t conform his conduct to that required by the law. He will get arrested for drunk driving or lose his temper and get into a fight, or in the case of Mr. Senn, shoot a gun over his wife’s head. Mr. Senn had argued that professional discipline is not appropraite for misdeanor conduct not related to the practice of law. The court rejected this defense and impose the public censure stating that Mr. Senn’s “conduct was the result of a very critical failure of judgment which was atodd’s with the respondent’s duuty to uphold the law.”

In any event, these are instances of the effects of alcohol abuse upon some attorneys.

Drug addiction by attorneys and other legal professionals is just as much a concern as alcohol addiction. A drug addicted attorney simply cannot practice law competently in all situations. There are several signs for drug addiction gettiong out of hand for an attorney. Evenetually as the drug addiction increases, an attorney will:

1. begin missing court appearances,

2. fail to take necessary depositions or the depositions, when taken, are not taken competently,

3. fail to give competent legal advice to clients’ and

4. fail to timely and competently prosecute or handle legal

matters for clients.

As the foregoing conduct begins to become the normal operation for the impaired attorney, the attorney’s due of due care owed to the cleints disapperas. Eventually, and it is only a matter of time, the attorney will commit an act, which would not have been done had not the attorney not been impaired, which harms a client and results in a malpractice claim and possible disciiplimary being taken against the attorney.

CHAPTER EIGHT

DRUG ABUSE

INTRODUCTION

Drug use in this country, both legal and illegal, is at an all time high. The Federal Government through its Drug Use Forecasting Program (D.U.F.) test the urine of arrested persons in custody who have submitted to voluntary testing. The D.U.F. Program tests for the presence of 10 drugs. In most cities, according to the federal government’s own statistics, more than 50% of those tested were found to have been recently using drugs. In twenty three cities that participated in the program in 1990, the rate of males that tested positive for drugs ranged between 30% to 78%. For females the rate was between 39% to 76%. In 8 of the 23 cities in which the tests were conducted, 70% or more of the women arrested tested positive. The test results showed that twenty percent of both the men and women tested positive for two or more drugs. The most common drug that was found, in people who were arrested for drug crimes, was cocaine. When it comes to the drug of choice, cocaine is the leader but it is followed very closely by marijuana and hashish. In later years, heroin has been making a comeback, as has LSD. It is interesting that marijuana is making a comeback. In fact in 1989, of all people who were jailed in both federal and state prisons, 9% were there for marijuana and hashish crimes and not any other drugs. This tends to show that marijuana, even though it isnot anywhere near as addictive or dangerous as cocaine or heroin, its use results in much higher rates of incarceration than most of the other drugs.

There is very strong evidence of a relationship between drug use and crime. Usually the thought is that because the drugs are so expensive, a crime has to be resorted to in order to pay for the habit. As a practical matter, for example, if heroin were legal, it would be cheaper to produce than aspirin because it comes from natural sources. The problem is that heroin is not legal and the cost is through the roof for it, and people who become addicted to it have to pay the higher price. That is not to extol the legalization of drugs but rather to point out the relationship between the cost of drugs and the crime they spur. That does not mean that there isn’t a relationship between people committing crimes because they are on drugs. It is the function of drugs to change people’s perception of reality. By changing their perception of reality, people will do things that they would not normally do. This is why under the law they have the defense of voluntary and involuntary intoxication to determine diminished capacity.

The 1990 D.U.F. figures show that people who were under the influence of drugs committed 336,000 reported crimes of violence. This works out to roughly 5.6% of all violent crimes in the nation in 1990 that were committed by people using drugs. It is not known how many people who committed the crimes were doing this for lack of reason and how many people were doing this for lack of money. For example, there were 130,260 rapes in 1990, of which 7.4% were related to drug use, which is approximately 8,400. In robbery, which is more of a financial motive, there were 1,149,710 robberies of which 9.1% were committed by people under the influence of drugs. This is close to 150,000 robberies by people who were on drugs. In assaults, not involving a robbery, where people are beating up other people, nearly 5% of the perpetrators were on illegal drugs of some type. The largest number of crimes was in assault, 4.7 million, and 5% of that number is 235,000 which represent drug related assaults.

It is important to understand the difference between various drugs and how they are rated. The Drug Enforcement Administration, DEA, has a schedule of five different types of drugs rated by their abuse potential from highest to lowest. Schedule 1 DEA drugs are heroin, LSD, hashish, marijuana, methaqualone and designer drugs. The effects of Schedule 1 drugs are rather unpredictable. There are severe psychological and physical dependence and sometimes even death. There is generally no medical use for these types of drugs. There is, however, a severe disagreement on marijuana. Marijuana has traditionally, for thousands of years, been used as a medicinal drug and it was legal in this country until the Food and Drug Act of 1932. Dr. Dean Edell, a noted radio doctor, once stated he has a medical book in his office that was written in the early 1930’s that lists sixty five different ailments that for which marijuana could be used as a treatment. Marijuana is very popular as atreatment for nausea caused by chemotherapy in the treatment of cancer. California has a synthetic drug called marinol, a pill for just that purpose, but it is recognized that smoking marijuana is significantly better because it gets in the system right away and a pill has to be absorbed. The Federal government continues to refuse to acknowledge that marijuana has any medicinal benefit at all. There have been several cities across the country that have in essence decriminalized marijuana for people suffering from AIDS and so forth for people who need the drug as part of their treatment. The Schedule 2 drugs have a high abuse potential rather than the highest. Included under this schedule are morphine, PCP, codeine, cocaine, methadone, demarol, benzedrine and dexidrine. They can lead to severe psychological or physical dependence; however, there is some medical use for these drugs especially, codeine and demarol as pain killers. For the drugs with a medium potential of abuse, which are classified as Schedule 3 drugs, are codeine with aspirin or tylenol, and some amphetamines and anabolic steroids. Schedule 3 drugs can lead to moderate or low physical dependence or high psychological dependence, and are recognized as having medicinal uses and are widely accepted as such. The Schedule 4 drugs on the DEA list are Darvon and Talwyn (registered trade names), phenobarbital, equanil, miltown, librium, diazepam are rated as having a low potential of abuse. These drugs may lead to limited physical or psychological dependence, but they do have medicinal use. These drugs cannot simply be banned totally, becausethey do have medical uses. As such, they are in fact regulated. The lowest ones, Schedule 5, are over-the-counter or prescription drugs with codeine, lomatil, robitussin AC, and again they have medicinal uses. Any drug which requires a prescription to be used must be held only by people who have that prescription. Even though the drug would be legal if an attorney had the prescription, if an attorney did not have the prescription for a drug in the attorney’s possession, the attorney is in violation of the law.

There was a case where the husband had the right to have the drug but not the wife. The husband’s prescription had run out but he had not used all his pills and had a few of them in this jacket pocket. The wife grabbed his coat to wear while going on a simple errand. While wearing the jacket, the wife was stopped for suspicion of drunk driving and found her husband’s prescription drugs on her. The wife was for having the drugs without a prescription, and technically there was a violation there. At trial, the defense had to be prove that she did not know her husband’s prescription was in the pocket and that her husband did in fact once have a valid prescription. Mere possession of an illegal drug or a legal drug without a valid prescription is a crime itself, the use is not required. In addition, the possession of illegal drugs which may result in prosecution may not even be sufficient to cause a high. There have been numerous cases reported in which people have been convicted for having drugs that were not even in sufficient quantity to have an effect. In some instances,the prosecution is permitted to even count the paper in which the drug is wrapped if is to be smoked, to determine the amount that is present.

Drugs have an effect on users lives in addition to exposing them to criminal prosecution and possible imprisonment. The most important non-medical effect of drugs is the affect it has on a user’s health. Drug addiction has several potential devastating effects on an individual. Such potential results include death, medical emergencies resulting from overdosing, injuries caused as a result of being under the influence of drugs, exposure to diseases such as HIV as a result of intravenous drug usage and chronic physical problems as a result of drug use. In 1990, the Drug Abuse Network (DAWN) surveyed medical examiners in 27 metropolitan areas. DAWN discovered that 71% of drug caused deaths were male, 53% of such deaths were white, 29% were black and 16% were Hispanic. Alcohol was also found to be present with drugs in 40% of the deaths. The most frequently used drugs causing death were cocaine (43%) and heroin or morphine (34%). From 1980 to 1989, the number of deaths attributable to drug use increased from 58%, NCHS, “Advanced Report of Final Mortality Statistics, 1989”, Monthly Vital Statistics Report, V,40 (Jan. 1991).

Besides death or harm of the user, drug abuse often also affects innocent people as well. The most common effects of a person’s drug abuse upon others is that a spreading disease or causing accidents. The Center of Disease Control (CDC) estimatedthat 60% of children below 13 years of age with AIDS contracted it from their mothers who were either intravenous drug users or has sex with partners who were IV drug users. In 1990, nearly 12,000 of the 43,000 persons known to have AIDS were IV drug users. Another disastrous effect of drug use among women is that they may acquire pass drug addiction to their infants. The General Accounting Office has estimated that drug-exposed infants for each year range between 14,000 to 375,000. To combat this flood, many states have passed legislation making it a crime for a mother to use drugs while carrying a child. In such states, doctors are required to report test a mother’s blood during examination and after birth and report positive findings to the district attorney for prosecution. The effects of this law, after highly visible prosecutions, have been generally worse for the child. Drug using mothers, knowing that a positive result will result in prosecution have been either getting an abortions without having blood test taken, or are not getting prenatal care. The number of women getting prenatal care in states, adopting such laws, have dropped significantly. In addition, the number of children being born with prenatal injuries or prematurely, which could have been avoided had prenatal care been given has also increased in those states.

Accidents caused by persons under the influence of drugs is a major cost to society. The most common type of drug related accident is that of a motor vehicle accident. The Maryland Institute of Emergency Medical Services reports that betweenJanuary 1988 and July 1989, 7% of persons injured in vehicle accidents and 10% of motorcycle drivers injured in accidents were under the influence of drugs. A study of 643 New York City drivers injured in the same period showed that 18.2% were positive for cocaine use. A study of by the National Transportation Safety Board (NTSB) of 181 fatal crashes in 8 states in 1987 and 1988 discovered that 33% of the drivers tested positive for alcohol or drug use. These accidents cased 207 deaths. A 1986 NTSB study of 317 tractor trailer drivers tested at a weighing station found that 29% tested positive for drugs or alcohol. The most commonly discovered drug was marijuana at 16% and other stimulants at 15%.

Besides the effects on the individual or other persons as a result of drug abuse, another result is on the loss of productivity for the nation as a whole. There have been many studies which consistently show that drug abuse among workers seriously impairs the worker’s ability to function on the job. In a study of postal workers, 2,500 workers were given preemployment urinalysis. It was found that employees testing positive for marijuana use were 1.6 time more likely to quit or be fired, 1.5 times more likely to be have an accident, two time more likely to be injured on the job, 1.5 time more likely to be disciplined, and 1,8 times more likely to be absent that those workers who tested negative for drug use, “The Efficacy of Preemployment Drug Screening For Marijuana and Cocaine In Predicting Employment Outcome”, Journal of the American Medical Association, Nov. 1990. A 1985 National Household Survey onDrug Abuse discovered that 12% of full time employed adults admitted using marijuana within 30 days and another 4% of the full time workers admitted to currently using cocaine. Part-time employees also admitted to using drugs in a similar ratio. In the 1990 National Household Survey of Drug Abuse, the proportions of employees admitting marijuana use had fallen to 6% and for cocaine the percent had fallen to 1%. While the drug is significant, it still represents an estimated use of drugs by employees of nearly 7 million persons. Also, it is unclear if the number of persons reporting usage feel because people actually quit drug use or if they failed to report for fear of having their drug use discovered by their employer.

Drug usage affects American society on many levels. In many instances, the discussion of the effects of drug use mirrors that of alcohol. For that reason, this chapter deals with the areas where drug abuse differs from alcohol. The main differences between alcohol abuse and drug abuse are in relationship between drugs and crime and society’s response to drug abuse.

1. DRUGS AND CRIME

Drugs have become one of the major factors in crime in the United States. The U.S. Department of Justice’s Bureau of Justice Statistics (BJS) conducted a survey of jail inmates in 1989. The survey found that 75% of all jail (city or county) inmates had used drugs in their lifetime. The survey also disclosed that 40% of the inmates and sued drugs in the month prior to their offenses and 27%were under the influence of drugs at the time of their offense, Table One. For state prison inmates the use of drugs was even higher. Nearly two-thirds of the state inmates stated that they used drugs at least once week for the month at some time. Over a third of all prison inmates stated that they had been under the influence of drugs at the time of their offense, Table Two.

end of sample view

While addicts commit crime to get drugs, there is an entirely different reason of drug crime from the pusher and distributor. Because of the huge amounts of money which can be made by selling drugs, an entire underground drug industry has developed. The best analysis is with that of prohibition. When the United States adopted the Volstead Amendment banning alcohol, organized crime developed to fill the need and desires of the American public for alcohol. Prior to prohibition, alcohol was both legal and cheap. During prohibition, organized crime developed with such figures as Al Capone, Lucky Luciano, Legs Diamond, who shot their way to the top and made hundreds of million in untaxed dollars. With its illegal alcohol profits, organized crime invested into legitimate businesses and now many of the wealthiest families in America try to downplay the fact that their wealth had its origins in “rum running.” The same is happening now with drugs. Today’s drug dealers see what happened in prohibition where multimillions of dollars were made and respectability bought with that money. Drug dealers are every bit as willing to kill competitors as were Al Capone at the St. Valentine’s Massacre. Today, it is not uncommon to turn on the television at news hour and hear of a drug related shooting and innocent people being slain in drive-by shootings. There is only one reason why people deal in drugs and that is to make money. The profits in the drug trade are unbelievable. TheOffice of National Drug Control Policy estimated that in 1990, drug users spent $18 billion for cocaine, $12 billion for heroin, $9 billion for marijuana and $2 billion for other illegal drugs. The Select Committee on National Narcotics Abuse and Control estimated that drug abuse was several times higher ar $140 billion in 1987. Whatever the figure, it is huge and the profits themselves are not taxed. Marijuana, for instance, is the largest cash crop in California. The growing of marijuana is a double insult to society. Not only is growing marijuana is illegal but the profits derived from the sales are not taxed costing the state and federal government hundreds of millions of dollars in taxes each year. The incredible profits available in drug dealing has induced many people, otherwise lawabiding, to enter into the field. In 1980, the arrest for manufacturing and sale of drugs accounted for only 22% of all drug arrest. In 1990, manufacturing and sale arrests have risen to 32% of all drug arrests.

At this time, drug usage is generally viewed as a criminal offense punishable by imprisonment not treatment. The Uniform Crime reports (UCR) estimated that state and local agencies made nearly 1.1 million arrests for drug abuse in 1990. The ordinary cost for processing each arrest is estimated to be $200. This translates into nearly $20 million dollars just to arrest drug offenders, nearly two-thirds of whom were merely for possession. The DEA, which concentrates mainly upon dealers, in contrast, for the entire United States made only 21,799 arrests in 1990. The 500 to 1disparity in state versus federal arrests is the fact the state punishes users almost as harshly as dealers. The UCR that state and local drug related arrests, most of which are for possession, have risen from 6% of all arrests in 1980 to 8% in 1990.

The FBI crime statistics show that while drugs are a national concern it is most prevalent in the cities, Table Four. In addition, the FBI statistics show that drug use in the West and Northeast is almost three times the rate in the midwest and the South has almost twice a rate of the midwest, Table Five.

END OF SAMPLE VIEW

The difference between the arrest rates in rural versusmetropolitan ears and the midwest versus the rest on the nation has resulted in various explanations. One of the most commonly advanced explanations is that drug arrests are higher in the West, south and northeast because that is where most of the drugs enter this country and it is also where most of the big cities are located. In response, people in the midwest point the fact that it is referred to in a derogatory manner by liberals as the Bible Belt. Nonetheless, many people in the midwest point to the strong spiritual belief of its people as proof that persons with such strength of character and religious belief have no need to resort to artificial stimulation to cope with life. In any event, while drug use is lower in the midwest, it is not non-existent. Likewise, while drug use in small towns is a quarter of what it is in the large cities, it, nevertheless, is present. As such, it is clear that drug abuse is a national concern and is not, limited, as it was once thought, to the inner cities. As such responding to drug abuse requires a national consensus.

2. RESPONDING TO DRUG ABUSE

The traditional response to the drug problem in the United States has been to jail the addict and then pusher. This has resulted in building more and more prisons. Today, the United States has more people in prison, mainly for drug related offenses, than any other nation in the world. The costs for incarcerating a person in a state prison tends to sun $25,000 per year as an average. The high cost of jailing people, often for justpossession, has resulted in many states having to reduce social services to its citizens in order to pay for the imprisonment of otherwise non-violent drug addicts. The cost for drug abuse to American society, in all its form are high and it has resulted in all segments of society looking for ways to curb the costs incurred in punishing people for their drug addiction, Table Eight.

END OF SAMPLE VIEW

In response to high cost of drug addiction on American society in all its forms, government has moved to expanded its war on drugsbeyond that of mere imprisonment. A 1990 Gallup poll should that 40% of those surveyed favored teaching young people in schools about the dangers of drug abuse. This tactic has now been adopted by all schools as a means of restricting the growth of drug abuse by limiting the number of people using drugs by educating them of its deleterious results.

The growing effects of drugs on society have resulted in society as a whole becoming willing to certain violations of privacy in order to fight drug abuse. A 1989 Gallup poll showed that over 90% of those surveyed favored mandatory drug testing was appropriate for persons involved in safety sensitive jobs. The percentage favoring mandatory job testing fell, in the poll to only 61% for persons not involved in safety related job such as office workers. as of 1991, 11 states had adopted laws regulating workplace testing. Another 14 states had introduced legislation for regulating employer drug testing in their states. The Bureau of Labor statistics conducted a survey in 1998 and found that 3% of all private nonagricultural businesses (145,000 businesses) had drug testing programs. Twenty percent of employees of private nonagricultural companies worked for businesses which had some form of drug testing policy. The BLS estimated in its 1988 Survey of Employer Anti-Drug Programs that 953,100 workers were tested in the previous year for drug use. In addition, 4 million job applicants were tested for drug use in 1988. The BLS discovered that 9% of the workers and 12% of the applicants tested for drug use yielded apositive result.

In an effort to deal with the increasing number of drug addicts entering the criminal justice system, many states have begun viewing drug addiction as a disease rather than a criminal offense. A 1989, Harris poll sowed that people were very much in favor of spending more money on education and drug treatment in an effort to fight drug abuse in society, Table Six.

END OF SAMPLE VIEW

A May 1990, Associated Press poll mirrored the Harris poll and found that 57% of those polled felt that placing addicts in treatment facilities was more effective in dealing with drug addicts than imprisonment. As such, many states have created drug courts to handle drug cases separately from other crimes.

Reflecting the growing belief that drug addiction should be treatedas a disease where possible, many states, have today, enacted legislation which permits judges to sentence first time offenders to treatment facilities rather than prison. If the offenders complete the treatment facility and remain clean for a period of time, as proven by random tests, the drug conviction will be dismissed from the offender’s record. If the offender can not remain clean, then the offender will be sentenced to jail. A Treatment Outcome Prospective Study (TOPS) have found that court ordered treatment programs tend to be more effective than a person entering treatment voluntarily or upon referral by friends or counselors, Table Seven.

END OF SAMPLE VIEW OF CHAPTER

The study reflected in Table Seven shows that court ordered treatment is the most effective type of drug treatment program. The reason for this is the additional motivation which it provides. While a person may be motivated to voluntarily enter treatment forpersonal reasons such as keeping a family together and keeping a job, court ordered treatment adds the additional incentive of keeping the person out of jail. However even with this additional incentive, not all drug abusers are able to complete the program and remain out of jail.

One of the most innovative programs for fighting drug abuse has been the 1988 Anti-Drug Abuse Act. Under this Act, both state and federal judges have the authority to deny certain federal benefits to persons convicted of drug possession or drug trafficking. Under the Act 406 specific federal benefits may be denied to persons convicted of drug related offenses. Among such denied benefits are the denial of student loans, small business loans, radio and television broadcast licenses, research grants and fellowships, pilot and maritime licenses, physicians’ prescription wiring authority, Federal contracts and purchase orders and contracts and purchase orders by Federal grantees or contractors. Under this Act, a person convicted of drug possession can be denied benefits for up to one year for the first offense and up to 5 years for subsequent offense. For drug trafficking offenses, benefits can be denied for up to five years for the first offense and up to ten years for subsequent offenses. The Act, however, does not permit judges to deny a convicted drug offender of the following federal benefits, social security, public welfare, disability and veterans benefits and public housing. The purpose under this Act add additional punishment to drug abuser as a deterrent to drug abuse.Whether such additional punishment is a deterrent to drug abuse is unclear. If a person is willing to face jail as a potential risk for using drug the belief that the additional risk of losing a student loan will change that behavior is speculative.

While the Anti-Drug Abuse act does not permit public housing benefits to be cut off as a result of a drug related conviction, the U.S. Department of Housing has instituted a program that permits its 3,300 Public Housing Authorities and Residence management Corporations to deny public housing to drug dealers and users. All public housing leases now contain clauses which require the lessee to refrain from using drugs as a condition of obtaining public housing. The standard of proof for denting or revoking public housing is that of “preponderance of the evidence” rather than “beyond reasonable doubt” which makes it easier for the housing agency to deny housing assistance to suspected drug abusers or to evict current tenants for drug use.

As a further punishment for using drugs, Federal law requires states to enact legislation mandating a 6 month suspension for a drug offense or suffer a 5% reduction of Federal Highway Funds which will increase to 10% on October 1, 1995.

Any discussion of the responses to drug abuse would be incomplete unless it included asset forfeiture. Under the asset forfeiture laws, the Federal government and many states may confiscate from criminals the fruits of their criminal drug activities controlled substances, equipment used in the drugactivity, money derived from the drug activity and property purchased with drug profits. As of 1992, the federal Government and 43 states also permitted the forfeiture of real property acquired with drug profits. There are two types of asset forfeiture statutes, criminal forfeiture and civil forfeiture.

Under the Federal criminal forfeiture law, property that is subject to criminal forfeiture can be specified in the criminal indictment of the defendant or can be added later in a bill of particulars that modifies the indictment. If the defendant is convicted, the court can declare the property forfeited at the final judgment. Claims by innocent third parties as the property are heard by the court after conviction but prior to the final order or forfeiture. The Attorney has the authority in federal forfeiture cases to remit or mitigate the forfeiture if its implementation would be unduly harsh. Such mitigation is usually limited to lien holders or innocent family members who would be inequitable harmed if the forefather occurred.

The civil forfeiture of drug assets is often the preferred method for both the Federal government and 49 states. Under the civil forfeiture statutes, the burden of proof is only “by a preponderance of the evidence”. In addition, in many forfeiture statutes hearsay evidence is permitted which permits the government to conceal the names of their informants and undercover agents.

One of the most unique method of addressing drug abuse is for the states to tax the profits. As of 1991, 21 states had adoptedlaws for the taxing of drug profits, A Guide to State Controlled Substance Acts, National Criminal Justice Association (1991). Generally, the taxes take the form of stamps, sales or excise taxes which are generally around $3.5 per gram of marijuana and 4200 for each gram of a controlled substance. A person in possessio is required to purchase the tax stamps for the drugs, usually anonymously. If the person is caught for drug possession and is found not to have the tax stamps the person can be also convicted of tax evasion irrespective of the outcome of the drug case.

Despite the various alternatives discussed above, the most common response to drug abuse still remain imprisonment. According to the BJS, 71% of those convicted, in State Courts, of drug trafficking are incarcerated as opposed to 72% of aggravated assault or 65% of larceny, BJS, Felony Sentences in State Courts, Bulletin NCJ-126923 (1990). In Federal Courts, 91% of those convicted of drug trafficking are incarcerated as opposed to 84% for burglary, 78% for rape, 62% for assault and 34% for larceny. Those persons convicted of murder in Federal Courts are have only a slightly grater incarceration that drug traffickers at 93%.

While responses of various types are being sought for drug abuse, there is still no belief among politicians that drug laws should be decriminalized. While a few states, such as California, makes having small amount of marijuana an infraction, possession ofany other illegal drug, regardless of the amount, is still a felony. Illegal drug use is still, for the foreseeable future, going to be illegal. As such, all of the problems discussed above which flow from an expensive, illegal and addictive substance will continue to plague American society.

CHAPTER NINE

SUBSTANCE ABUSE IN EMPLOYMENT AND TESTING

INTRODUCTION

Substance abuse among employees is one of the major concerns among employers. Employers, including those in the legal profession, do not like to employ known alcoholics. When employers can legally do so, sometimes when they can not, they select a non-alcoholic over an equally qualified alcoholic. In addition to problems with the hiring of an alcoholic, employers also face problems of what to do when an existing employee is found to be an alcoholic. Many states, along with the federal government have passed laws which serious impinge upon an employer’s rights to discipline or fire an employee for alcoholism. The result of these laws have been to make employers, to a certain degree, the primary caretaker of alcoholics. The social responsibility to care for alcoholics have, in many instances, been shifted from society to the employer who may be required to continue to employ an unproductive alcoholic employee rather than risk a wrongful discharge suit based upon the employee’s alcoholism. The cost for defending such suits can cost an employer in excess of $100,000 so that many employers can not afford the risk incurred n firing an alcoholic employee. The help alleviate the problem by having an alcoholic employee many employers are looking at drug testing a means of weeding out potential employees and predicating continuedemployment upon passing random tests. The questions regarding drug testing is how and when they can be utilized.

Substance abuse, as a whole, severely affects the nation’s productivity. The productivity of a person is severely reduced when that person becomes involved in substance abuse. Statistics show that the substance abusers, as a whole, are three times more likely to be late or absent on the job and nearly times as likely to be involved in accidents than a non-abuser. The White House Conference for a Drug-Free America in 1988 concluded that drug abuse among workers poses a real and substantial risk to both the abuser and co-workers. Substance abusers are, by statistics, to be injured on the job at a rate five times that of co-workers who do not use alcohol or drugs. The annual cost of drug use to American business is estimated to be $60 billion of which over half id related to lost productivity. A study of the productivity of alcoholics conducted by Laurence Miller concluded that, “there was a significant association between current quantity of alcohol consumed per drinking occasion and impairment on neuropsychological tasks. Most seriously affected were the processes of abstraction, adaptive abilities and concept formation. “Problems of Mass Screening for Misused Drugs, Substance Abuse in the Workplace, John Morgan, M.D. Another study conducted by The National Drug Institute in Danvers Massachusetts concluded that drug use among employees cost employers $7,2360 per year in lost productivity, increasedmedical expenses and destruction of property as a result of the employee’s conduct on the job. Insurance experts estimate that at least $50 billion per year of the total insurance premium paid by employers is to cover substance abuse illnesses and treatment. A study of Research Triangle Institute in 1980 concluded that employers lost $47 billion in lost productivity, medical expenses and property damage as a result of employee substance abuse.

1. SUBSTANCE ABUSE ON THE JOB

It is estimated that 10% of the nation’s workforce is alcoholic and that alcohol was a factor is almost half of all industrial accidents, Drug Testing at Work, Beverly Potter (1990).

In 1986, the former head of the Federal Drug Enforcement Administration, Peter B. Bensinger, estimated that in any month seven million persons were abusing legal prescription drugs such as stimulants, barbiturates, tranquilizers and sedatives. Such persons are bringing such substances in greater numbers to the job.

“High on the Job”, Glamour (Aug. 1986). The CONSAD Research Corporation did a 1975 national survey of industrial drug use using 197 firms, “Drug Abusers in the Job” Occupational Medicine (June 1981). The study concluded that drug abuse effects all races, educational and classes. As part of the study, employees of 20 of the companies (2,500) were surveyed as to their drug use. It was found that 17% of the surveyed employees admitted to using illegal or nonmedical drugs.

Generally, anyone can be a substance abuser. However, the common profile for a drug user on the job is a person below 40 years of age with limited seniority or authority on the job. The use of drugs has spread from ghetto throughout society. In 1977, the most common patient in drug treatment centers were predominantly black males seeking treatment for heroin. By contrast, in 1984, the most common patient in treatment centers were low to middle class white men seeking treatment for cocaine addiction. The National Institute on Drug Abuse estimated in 1986 that nearly two-thirds of new persons entering the workforce have, at least once, used illegal drugs. The most common type of drugs used on the job are prescription drugs. The National Institute For Drug Abuse estimates that prescription drug abuse account for 60% of all hospital emergency room admissions and 70% of all drug related deaths.

There have are several reasons postulated for the use of employees of drugs or alcohol on the job. A reason often advanced by workers in support of their substance use is a perception that hey are able to do their job better. Truck drivers have, for instance, have often stated that the use of stimulants, such as amphetamines, allows them to stay awake longer and to operate their trucks safer. Attorneys and judges have often justified the use of drugs, especially cocaine, for its ability to allow them to work longer on important tasks rather than having to break for sleep. Attorneys, using cocaine, have also stated that it improves theircreativity and therefore is an advantage in trial work or negotiations for clients. Workers have also justified the use of drugs on the job as a means to tolerate and alleviate boredom. Such workers claim that their jobs are so routine and predictable that they are of no interest to them. Without a challenge being posed, these workers claim that drug or alcohol use is the only way that they can tolerate the job.

The most common reason for a person using a drug on the job with the knowledge that discover of the drug use may result in termination is addiction. Many persons who use drugs or alcohol on the job are addicted. They often need the substance either to prevent withdrawal or they need it to the effects of other drugs which they have taken. Many drugs have side effects such as hangover, depression or anxiety. In order to overcome these symptoms, many substance abusers will take additional drugs or turn to alcohol.

One of the most important reasons that an employer does not want employees to use drugs or alcohol on the job is that of liability to third parties as a result of actions by the employee while on the job. The common law of Respondeat Superior is still alive and kicking. Employers are responsible for the torts and actions committed by their employees during the scope of their job. This means, quite simply, if a drunken employee causes an accident while on the job to third parties, the employer is responsible for the damages. This issue was highlighted in the in the 1980’s whenseveral railroad accidents were attributed to engineers who had marijuana in their system. The railroads were for the wrongful deaths and personal injuries suffered by the passengers in the accidents. In the legal profession, lawyers are responsible for the actions of the employees under their control. In such a situation, the fact that such employees may commit malpractice while under the influence of drugs or alcohol will not be a defense against a claim of malpractice against the attorney. In addition, where attorneys practice law together in a partnership form, each partner is responsible for the malpractice damages caused by the other partners. Drug or alcohol abuse by the partner committing the malpractice will not relieve the other partners of their personal liability for payment of the malpractice award.

One of the biggest problems facing employers are what to do once an substance abusing employee has been identified. An employer is, generally, not permitted to fire an employee simply the person is a substance abuser. There are several laws which come into play whenever an employer seeks to take action against a substance abuser. The federal Age Discrimination in Employment Act precludes an employer from discriminating against a person, over the age of 40 years, in a job on the basis of age. Many alcoholics are over the age of 40 and therefore they can claim that any action being taken against them is because of their age and not because of alcoholism. By claiming that the alcoholism charge is a pretext for age discrimination, alcoholic workers, or other substance abusersover the age of 40, shift the burden of proof to the employer to prove that no discrimination was intended. The Federal Rehabilitation Act of 1973 prohibited contractors with the federal contracts and employers receiving federal grants from engaging in discrimination on the basis of a person’s handicapped status. A handicapped individual is, under 29 U.S.C. section 706(7)(B) defined as:

“person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such impairment…(S)uch term does not include any individual who is an alcoholic or drug abuse whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.”

The interesting aspect of this section is that while drug abusers and alcoholics are handicapped within the meaning of the Act, they are only covered if their addiction does not interfere with their performance of the job in question. Therefore, for all intents and purposes, alcoholics and drug addicts are considered a handicaps under this Act unless proven otherwise. Thus, employers having federal contracts over $25,000, either directly or through a subcontract, can not discriminate against a person on the basis of the alcoholism or drug addition. In Rodgers vs. Lehman (1989) 869 F.2d. 253, the court set forth the test to be followed for determining whether an employer violated the act:

“1. When the agency suspects that an employee’s poor job performance results from alcoholism, it should inform the employee of available counseling services.

2. If the employee’s unsatisfactory job performance continues, the agency must provide the employee with a ‘firm choice’ between treatment and discipline. The agency must clearly and unequivocally warn the employee that unsatisfactory job performance caused by drinking will result in discipline, eventually the termination of employment.

3. Unless in a particular case it is clear that in patient treatment is immediately required, the employee must be permitted to participate initially in outpatient treatment

of sufficient duration to assure him a reasonable opportunity for cure. If he continues to drink while participating in that treatment, the agency may impose progressive discipline upon him for any resulting job relayed misconduct.

4. If the employee ceases to participate in the outpatient treatment, is discharged for non-cooperation or continues to drink after completion of that treatment and is guilty of job related misconduct, the agency must, before discharging him, afford him an opportunity to participate in an inpatient program, using accrued or unpaid leave, unless the agency can establish that it would suffer an undue hardship[ from the employee’s absence.

5. If the employee completes the program but thereafter relapses, and as a result fails to perform his job satisfactorily, a decision by the agency to discharge him

will be presumed to be reasonable. Only in a rare case, such as where a recovering alcoholic has had a single relapse after a prolonged period of abstinence can this presumption be rebutted.”

The employer in such a situation is required to make reasonable accommodation for the person’s drug addiction or alcoholism. Am employer is not required to permit an employee to sue drugs or alcohol on the job. In addition to the Vocational Rehabilitation Act, Congress enacted, in 1992, the Americans With Disabilities Act (ADA) which prohibits employers from discriminating against persons with disabilities in employment. The ADA requires employers to make reasonable accommodations to persons with disabilities. The testset forth in Rodgers, supra, is the one most often to be employed in determining if there has also been discrimination under the ADA.

In addition to the federal laws regarding the hiring of alcoholics and drug users, many states had also enacted their own laws as well. California, for instance, in Government Code sections 19230 and 19231 require state agencies make reasonable accommodation for a person’s alcoholism or drug addiction. Section 19230 states that it is the government policy “to encourage and enable individuals with a disability to participate fully in the social and economic life of the state.” As such state agencies are required to “make reasonable accommodation to known physical or mental limitations of an otherwise qualified applicant or employee who is an individual with a disability.” Gonzales vs. California Personnel Department of Education (1995) 95 D.A.R. 896.

Employers should do everything possible to identify and help employees suffering from substance abuse. The worst thing that an employer can od is to ignore the problem in the hope that it will either go way or not get any worse. Substance abuse, by its very nature, is one that ends to get worse unless treated. One of the best ways to get started in the development of a drug and alcohol free workplace is for the employer to conduct a survey of the workforce so as to discover what problems actually exist. The first indication of a potential problem with substance abuse is with a review of employee records. Excessive job absences or medicalclaims may be an indication of substance abuse problems. Employee records are, however only as good as they are maintained. If the reports do not keep trace of an employee’s work history then they are not of much benefit to the employer. A review of the employee records should be in addition to touring the workplace and speaking with the employees. The most important act that an employer can do is to institute a drug and alcohol free policy and insist on its enforcement. Employees should be made aware of the employer’s policy and all drugs including alcohol should be banned from the workplace. As part of its policy, an employer should adopt containment procedures for investigating employees for alcohol and drug use prior to the development of problems. The final aspect in any good drug control, problem is to provide assistance to employees in overcoming their problems. As shown in test set forth in Rodgers, supra, an employer today, in accordance with the Americans With Disabilities Act, must reasonably accommodate employees suffering from substance abuse. Since such employees can no longer be fired, it makes better sense to get treatment for them rather than risk them making mistakes that will cost the employer more than the treatment cost. In the legal profession, such treatment would certainly pay for itself. For a law firm not to offer treatment to an impaired attorney or secretary and to simply keep them on as employees is a malpractice action waiting to be filed. It is also certain that such persons will, unless they receive treatment, commit legal malpractice for which the law firmwill be liable. Only in the field of medicine are impaired professional more likely to commit malpractice than in the legal profession. Therefore, it becomes very important for law firms to institute policies and procedures for identifying and providing assistance their employees who are engaged in the cycle of substance abuse not only because it is the law or a nice thing to do but also because it is for their self-protection.

2. DRUG AND ALCOHOL TESTING BY EMPLOYERS

Employers do not, as a rule, want to have substance abusers work for them. Employers do not appreciate the increased potential for liability for civil suits deriving from actions of an employee while under the influence of drugs or alcohol. In addition, employers do not want to have productivity decreased or medical insurance premiums increase because of employees use of drugs or alcohol. Employers are turning to drug and alcohol testing as a means of keeping their employees off of drugs and alcohol. Most major sports, for instance, will immediately suspend a player and require entering into a treatment facility before being permitted to rejoin the club. Employers do not their employees to use drugs or be under the influence of alcohol for basic reason, to avoid loss of productivity and to keep medical insurance premiums down.

One of the most common reasons advanced by employers for the use of mandatory drug testing is for industrial accident investigation. Southern Pacific Transportation Company was one of the first employers to institute a program making mandatory drugtests followings an accident. The results of simply having such a policy has dramatically reduced the number of accidents. For the two prior to the institution of the program, Southern Pacific had 15,082 accidents of the job. For the first two years in which the program was in effect, industrial accidents dropped by 69% to only 4,865. In addition, personal injuries suffered as a result of such accidents also dropped 24%. As such, millions of dollars in workers’ compensation claims were saved as result of the implementation of the plan.

Another advantage of drug testing is its tool as a means of controlling drug abuse. In the Navy, it has been documented that following the institution of a random urinalysis program, positive drug results dropped from 48% in 1980 to only 21% in 1982. When Southern Pacific Transportation Company instituted its drug testing program 23% of those tested were positive for drugs. Two years later, only 6.5% of those employees tested by Southern Pacific had a positive result. The drug testing on the job as a deterrent to drug use is a very effective tool.

To accomplish their goal of having a drug free workplace many employers are turning to mandatory drug and alcohol tests as a condition for hiring and keeping a job. The use of mandatory drug and alcohol testing by employers is not always permitted under the law. Both state and federal laws define the circumstances when an employer can test employees.

When it becomes to drug testing the issues are differentdepending whether the employer is a public employer or private employer. The 1988 Drug Free Workplace Act, while not expressly mandating drug testing, requires employers to adopt anti-drug programs. Drug testing in government employment is far more likely to be permitted because of the inherent need of the government not to have impaired workers, especially in the safety area. To further drug testing in federal employment, President Reagan issued Executive Order 12564 giving discretion to federal agencies to conduct testing. Under the order, ant testing must be conducted by the federal agency itself and upon an initial positive result there must be confirmation by a more reliable test. If the retest also is gives a positive result, the employee must be offered the choice of counseling and rehabilitation prior to termination. Discharge can only occur if counseling is rejected or if accepted the employee tests positive in two subsequent tests. Guidelines were issued in 1988 by the Department of Health and Human Services to govern the testing procedures for federal employees.

Drug and alcohol testing has been widely instituted in the

federal government. The Department of Defense began testing all of its federal civilian employees in 1987. The Department of Transportation, DOT, following a series of railroad accidents in which alcohol or drugs were factors, also began random drug testing. The DOT has instituted a random testing program for the 30,000 federal air traffic controllers, fire fighters and railroad safety inspectors along with its own 26,000 employees. The FederalAviation Administration now requires all airline flight crews to submit to blood alcohol tests when requested by local law enforcement officers. The United states Justice Department even began testing in 1987 of employees in sensitive positions. The Attorney General’s Office issued a statement that, “It is doubly important for the agency with primary responsibility to ensure that its employees are drug free.”

Generally, drug testing of public employees is easier to accomplish that for employees in the private sector. The Seventh Circuit court of Appeals in Johnson vs. Martin (1991) 943 F.2d 15 held that probationary police officers had no protected interest in their jobs. As such, they suffered no injury when the results of the failed drug test were only placed in the file. In Sellig vs. Koehler (April 19, 1990) No. 39577, the New york Supreme Court upheld the random drug testing of probationary correctional employees. The court found that the membership in a police or paramilitary organization lessen’s the privacy expectations of the person. As such, a random test for such members does not violate any right of privacy.

In International Brotherhood of Teamsters vs. Dept. of Trans. (1991) 932 F.2d 1292, the Ninth Circuit of Appeals upheld the drug testing of truck drivers. While not government workers, the court found that because truckers were in a heavily regulated industry they have a reduced expectation of privacy since it is expected forthem to regularly submit to physical examinations.

Most employers in the United States are private employers. As such, testing by an employer of employees must be in accordance with applicable state laws. The objection most often raised against

drug and alcohol testing is that it violates the employees’ right of privacy. An individual’s right of privacy derives under the common law right of privacy and in some states by a state’s constitutional right of privacy. Under the common law, individuals were presumed to have a right of privacy unrelated to the Constitution., Restatement 2d of Torts section 652(B). The common law right of privacy exists only so long as the intrusion in question would violate the sensibilities of a reasonable person, Rugg vs. McCarty (1970) 173 Colo. 170, 476 P.2d 753. Under the purview of the common law right of privacy, if circumstances present a legitimate reason for the test, the privacy invasion properly would be upheld. On the other hand, random testing without any legitimate basis or purpose being served would probably not be upheld. Now the common law right of privacy which an individual possesses can be lost in a collective bargaining agreement, Schlacter-Jones vs. Gen. Tel. (1991) 936 F.2d 435, Clark vs. Newport News Shipbuilding (1991) 937 F.2d 934.

The common law right of privacy could expose an employer to liability for invasion of privacy under two different causes of action depending on the circumstances of the case. An employer whopublicly discloses the results of a failed drug or alcohol test could be sued for the public disclosure of private facts. Under this tort, truth is not a defense. Likewise, if the employer disclosed the information to the public in such a manner as to place the employee in a false light, even though the results are correct, the employer may be sued for tort of placing the person in a false light. In Bratt vs. IBM (1986) 785 F.2d 352 an employer was found liable for the improper disclosure of medical information. In Love vs. Southern Bell Tel. (1972) 263 So.2d 460, an employer was found liable for invasion of privacy for asking highly offensive question while conducting a polygraph while testing for drug use.

In Borse vs. Pierce Goods Shop, Inc. (1992) 963 F.2d 611, the Third Circuit Court of Appeals held that the common law right of privacy could support a claim for wrongful termination

Not all states find mandatory drug testing a violation of the common law right of privacy. In Groves vs. Goodyear Tire (1991) 70 Ohio App.3d 656, an Ohio court held that:

“The courts appear to be supportive of employers’ attempts to create a safe working environment by holding that drug testing does not constitute an invasion of the employees’ common law right of privacy.”

In Ohio, employers do have the right to mandate drug testing of employees at least to the extent necessary to maintain a safe work environment.

In Mares vs. Conagra Poultry Co. (1991), 773 F.Supp.248, a Colorado federal court found that there was no violation of thecommon law right of privacy where an employee was required to furnish information regarding medications being taken as a condition of employment. In making this decision the court relied upon recent U.S. Supreme Court decisions and held that the disclosure of such medical information was not a significant invasion of the right of privacy.

In Capua vs. City of Plainfield (1986) 643 F.Supp 1507, a New Jersey city conducted a surprise urine test of all of its 244 police and firemen following an anonymous tip that some of them were abusing drugs. As a result of the test, 20 employees tested positively and either were forced to resign or were fired. Sixteen of the officers filed a federal suit. The court on behalf of the plaintiffs that the mass test violated constitutional rights against unreasonable searches and seizures. The court held, “The threat posed by widespread use is real. The need to combat it manifest. But it is important not to permit fear and panic to overcome our fundamental principles and protections.” The court held that individual testing could occur under the, “individualized reasonable suspicion” standard. The wholesale mass testing without

reasonable suspicions of particular individuals, however, was unreasonable. “Drug testing is a form of surveillance, albeit a technological one. Nonetheless, it reports on a person’s off-duty activities just as surely as someone had been present and watching. It is George Orwell’s ‘Big Brother’ Society come to life.”

In Koch vs. Harrah’s Club (D. Nev. Sept 12. 1990) No. 23740

the court upheld the testing of hair samples as a requirement for pre-employment. The court held that the employer’s interests in having a drug-free workplace was a legitimate one and that the testing was a reasonable attempt to achieve it.

A New Jersey federal court in Jevic vs. Coca Cola (D.N.J. June 6, 1990) Civ. Act. No.89-4431 that requiring an applicant to consent to a drug test as a condition to employment did not violate the person’s right of privacy. The court held that, “the efforts of the private sector to combat drug use through policies which reasonably balance the interest of the employer and country with the legitimate concerns of the prospective employee.” The court in this case adopted the balancing test of the employer’s interest to the intrusiveness of the test employer and found that the effects on the plaintiff’s privacy rights were minimal.

In New York, a court upheld the right of employers to conduct testing but required the test to be accurate. The court permitted a lawsuit from a plaintiff claiming the test was inaccurate, Doe vs. Roe, (1990) 539 N.Y.S. 876.

In Kelley vs. Schlumberger (1988) 849 F.2d 41, the First Circuit Court of Appeals upheld a $125,000 verdict for infliction of emotional distress and invasion of privacy to the plaintiff who had been fired as a result of a positive urine test showing off-duty marijuana use.

In McDonald vs. Hunter (1987) 809 F.2d 1302, the Eight CircuitCourt of Appeals ruled unconstitutional the routine searches of prison guards and their vehicles by the Iowa Department of Corrections. Under the holding of this case, drug testing of prison guards is only permitted where reasonable suspicion exists for a guard abusing drugs.

In addition to the common law right of privacy, some states have adopted provisions in their state constitutions to provide a Constitutional right of privacy. Eleven states, Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana, Massachusetts, Montana, South Carolina and Washington, have adopted individual rights of privacy for their citizens.

In White vs. Davis (1975) 13 Cal.3d 757 and Rulon-Miller vs IBM (1984) 162 Cal.App.3d 241, California courts have held that the state constitutional right of privacy prevents private individual invasion of privacy. In Luck vs. So. Pac. Trans. Co. (1990) 218 Cal.App.3d an employee was able to sue an employer for a dismissal based upon a refusal to submit to a drug test and collected $485,042 in damages. In Hill vs. NCAA (1994) No. S01818180, the california Supreme Court held that the right to privacy applied to the NCAA which mandated drug testing of athletes. The California Supreme Court, however, balanced the right of privacy with the “NCAA’s legitimate regulatory objectives in conducting testing for proscribed drugs.” In doing so, the court concluded that the testing was justified.

In State vs. Helfrich (1979) 600 P.2d 816, a Montana court also ruled that the state constitutional privacy rights prevented intrusion into the privacy of individuals by private organizations or individuals.

While Alaska recognizes a state constitutional right of privacy, that right is limited when the public interests in protecting health and safety conflicts with it. Luedtke vs. Nabors Alaska Drilling (1989) 768 P.2d 1123.

Florida has held that the state constitutional right of privacy, as regards employee drug and alcohol testing, is preempted by the Labor Management Relations Act, Horne vs. Southern Bell Telephone & Telegraph (1992) 793 F.Supp. 315.

In Kelly vs. Mercoid Corp. (1991) 776 F.Supp. 1246, an Illinois District Court held that privacy actions may be preempted by the Labor Management Relations Act. Where a collective bargaining agreement exists, the court will determine if the agreement gives the employer the right to insist on mandatory drug testing. If the right exists, then it will be enforced.

In Louisiana, Holthus vs. Louisiana State Racing Commission (1991) 580 So.2d 469, permitted drug testing for the purposes of granting licenses. The court balanced the state right of privacy against the public interest in a drug free horse racing industry.

In Massachusetts, Folmsbee vs. Tech. Tool Grinding & Supply Inc. (1994) No. Bk-6397, the discharge of a woman who refused tosubmit to a strip search and urine test was upheld. The Court held that it was necessary for the strip search to conclude that no vials of urine were hidden to defeat the test. The test was held to be proper and not violation the woman’s right of privacy. In Gauthier vs. Police Comm’r (1990) 557 N.E.2d 1374 and O’Connor vs. Police Comm’r (1990) 557 N.E.2d 1146, the Massachusetts Supreme Judicial Court upheld the drug testing of police as not infringing upon their right of privacy. The court held that, “the public interest in discovering and deterring drug use by police officers outweighs the intrusiveness of the search.”

In addition to blood and alcohol tests for discovering drug or alcohol abuse, some states also permit the use of polygraphs also known as lie detectors. The use of polygraphs in employee testing is the most regulated form of employee testing. In 1988, Congress enacted the Federal Employee Polygraph Protection Act which covers all forms of testing an employee’s honesty. many states have also enacted their own laws regarding employee honesty tests. Rhode Island and specifically banned the use of polygraphs in making employment decisions. Seven other states, California, Delaware, Idaho, Maryland, Minnesota, Washington and Wisconsin, limit its use in employment decisions. New Jersey law specifically permits a polygraph use to ascertain certain drug-related activities of employees. The use of drug tests as a source of drug testing has its limitations. In many states, polygraph tests can not be admitted into evidence at courts. Even when polygraph tests arepermitted, the employer may be subject to a lawsuit for the infliction of emotional distress or the invasion of privacy if the questions asked are beyond the scope or purpose of the test. In Obrien vs. Papa Gino’s (1986) 780 F.2d 1067, the First Circuit Court of Appeals upheld a jury verdict for invasion of privacy against an employer who had asked highly offensive questions as part of the polygraph exam. A positive polygraph test, however, can serve creating reasonable suspicion of drug abuse so that a blood or urine test could be ordered.

When considering the use of drug testing in employment, a review of state law regarding an individual’s right of privacy must be conducted. The trend today is for courts to permit employers to mandate drug or alcohol testing when the testing is related to safety or is otherwise job related. In states, which have a constitutional right of privacy there is a balancing between the right of the individual and the reason for the test. In the legal profession, drug tests have seldom been used except where an attorney is a prosecutor in drug cases. In most balancing tests for drug tests of attorneys, the right of privacy would usually

outweigh any safety issue raised by the employer. However in government employment of attorneys, drug tests are usually upheld. In Wilner vs. Thornburgh (1991) 928 F.2d 1185, the testing of attorney applicants for the Antitrust Division of the U.S. Department of Justice was upheld as serving a legitimate governmental purpose.

CHAPTER TEN

SUBSTANCE ABUSE IN THE LEGAL PROFESSION

INTRODUCTION

The legal profession is not immune from the effects of alcoholism or drug abuse. In fact, given the stress generated in litigation it is hardly surprising to find that there is a large substance abuse problem in the legal profession. In 1986, it was estimated in Cocaine Blues, 72 A.B.A.J. 25 that between forty percent and sixty percent of all disciplinary cases involved alcohol or chemical dependency in some form. In addition to alcoholism on the part of attorneys, there is also the problem of alcoholism with employees. Lost of productivity is a main characteristic of alcoholism. yet, with many Federal Acts to ban discrimination the firing of an alcoholic employee is difficult. The Federal Rehabilitation Act and the American with Disabilities Act both recognize alcoholism and drug addiction as handicaps. Since, however, both alcoholism and drug addiction are protected disabilities, a person who is an alcoholic or drug addict can only be fired if, after the employer makes attempts to make a reasonable accommodation to the person, it is found that the alcoholic or dug addict still can not do the job properly. In the legal profession, having an alcohol or drug impaired attorney or staff member on board is similar to a ticking time bomb. Unless the person gets treatment the person will get worse and will eventually commit actswhich will expose the employer to a malpractice claim.

Today, alcohol is recognized as a contagious disease rather than a character flaw in the individual, Enabling – How We Help the Alcohol Drink, 73 Ill. B.J. 42. Alcohol affects an attorney’s judgment. A large portion of the disciplinary actions imposed against attorneys involved improper actions by the attorney when the attorney was impaired by alcohol or drug use. One of the major instances of discipline is improper trust account management resulting from alcohol impairment. Attorneys are in a position through their clients’ trust accounts that they can raise money through unscrupulous means as a result of their loss in judgment. An example of a case in which an attorney was disciplined involving the use of alcohol involved attorney Kenneth A. Senn, in which he was publicly censored for having fired a gun over his wife’s head while he was drunk, COLORADO LAWYER (June 1992). Mr. Senn was under alcohol influence as opposed to drug influence, but nonetheless the resulting criminal activity involved was such that it stemmed from his lack of control. The above instances are more related to situations where the attorney becomes drunk or otherwise disabled and can’t conform his conduct to that required by the law. He will get arrested for drunk driving or lose his temper and get into a fight, or in the case of Mr. Senn, shoot a gun over his wife’s head. Mr. Senn had argued that professional discipline is not appropriate for misdemeanor conduct not related to the practiceof law. The court rejected this defense and impose the public censure stating that Mr. Senn’s “conduct was the result of a very critical failure of judgment which was at odd’s with the respondent’s duty to uphold the law.” In any event, these are instances of the effects of alcohol abuse upon some attorneys. Another example of alcoholic playing a factor in attorney discipline is the New York case of In Re the Matter of Wheelan, 1991) 571 N.Y.S2d 774 in which the attorney was disciplined for having two counts of drinking while intoxicated and three degree assault. Despite the fact that none of these cases directly related to the attorney’s ability or competence to practice law or involved improper or negligent representation of a client, the attorneys were, nonetheless disciplined by the state bars.

Drug addiction by attorneys and other legal professionals is just as much a concern as alcohol addiction. A drug addicted attorney simply cannot practice law competently in all situations. There are several signs for drug addiction getting out of hand for an attorney. Eventually as the drug addiction increases, an attorney will:

1. begin missing court appearances,

2. fail to take necessary depositions or the depositions, when taken, are not taken competently,

3. fail to give competent legal advice to clients’ and

4. fail to timely and competently prosecute or handle legal

matters for clients, and

5. invasion of the clients’ trust accounts, Enabling – How We Help the Alcohol Drink, supra.

As the foregoing conduct begins to become the normal operation forthe impaired attorney, the attorney’s due of due care owed to the clients disappears. Eventually, and it is only a matter of time, the attorney will commit an act, which would not have been done had not the attorney not been impaired, which harms a client and results in a malpractice claim and possible disciplinary being taken against the attorney.

As with alcohol related crimes, crimes in while drugs are a factor will also result in professional discipline to the attorney even though the drug use has no effect of the actual practice of law. In the case, In Re Scarnavack (1985) 108 Ill.2d 465, 485 N.E.2d 1, an attorney was censured for the conviction of the federal offense of possession of cocaine. The Court held that the ensure was appropriate because drug possession was “conduct involving moral turpitude.” In a subsequent case, the Illinois Supreme Court found considered the progress the attorney made in rehabilitating himself from his drug addiction as a mitigating factor in the disciplinary action for the guilty plea in state court for possession of cocaine, In Re Lunardi (1989) 127 Ill.2d 413, 537 N.E.2d 767. In California, an attorney was suspended for five years for the possession of LSD, In Re Nadrich, 44 Cal.3d 271, 243 Cal.Rptr. 218. In Colorado, the possession of a controlled substance was rounds for imposing a three year suspension on an attorney with drug treatment being a mitigating factor in the sentence, People vs. Geller, (1988) 753 P.2d 235. Kansas publiclycensured and ordered an attorney to complete 100 hours of pro bono service for a conviction of possessing cocaine. Florida imposed a 90 day suspension on an attorney along with two years of probation and the requirement to enter its Lawyers’ Assistance Program for possession of cocaine, Florida Bar vs. Weintraub (1988) 528 So.2d 367. These cases show that states bars now view drug use in a very different light than in the past. regardless of whether the drug use was casual or addictive, state disciplinary agencies will severely punish the attorney.

Substance abuse in the legal profession has an effect on all legal professionals. Anything which diminishes the legal profession in the yes of the public effects how, each and every attorney, is also viewed. It is now recognized by every state bar and the ABA that substance abuse among attorneys should no longer be thought of as just an individual problem but rather as one affecting the entire legal profession. Towards that end both the ABA and each state bar have adopted disciplinary procedures both for the abusing attorney and those attorneys who enable the abusing attorney to remain a substance abuser by not reporting the substance abuse. This chapter discusses the practical effects of substance abuse on the legal profession and the responsibilities of all attorneys to combat it.

1. DUTY TO REPORT SUSPICIONS OF SUBSTANCE ABUSE

The first problem faced by a state bar in eliminating substance abuse is the identification of the attorneys and judgeswho are substance abusers. At this point, the state bars run into what has been called “the conspiracy of silence” and “the greatest obstacle to better regulation of the legal profession,” Lawyers and Judges Handbook on Alcoholism, K. Wolf & B. Thomas. The problem has always been, and it is not limited merely to the legal profession, that people generally do not want to get involve in matters for which they are not personally effected. This is especially true when the conducted observed is not a crime but rather a civil matter and especially so when the perceived conduct only gives rise to a suspicion of a problem with drugs or alcohol. The existence of the conspiracy of silence was discussed in The Lawyer’s Duty to Report Professional Misconduct, 20 Ariz. Law Rev. 509 (1978) which stated:

“(O)n study of the complaints received by a state disciplinary agency found that 277 complaints were received over a two year period, 34 or less that 13% were filed by lawyers….

A survey conducted in Boston revealed that over 60% of the attorneys responding would not report a flagrant and serious ethical violation…A Lay member of the state disciplinary

body reports that even members of that agency often failed to

initiate an investigation of an attorney suspected of

misconduct.”

It is only natural that fellow attorneys and friends would not want to injure a friend or fellow attorney by reporting a suspicion which was not true. The mere reporting of the suspicion would get into the permanent record of the suspected attorneys. Should the suspected attorney subsequently seek a judicial appointment, the allegation would come up again and result, merely because of theallegation, in the attorney not receiving the appointment. To say that this could not happen would be unrealistic in the extreme.

Even though attorneys and judges may not wish to suspected substance abuse of other attorneys and judges, they are required to do so and may be disciplined for not making the report. Disciplinary Rule 1-102 of the ABA Model Code of Professional Responsibility, which is still followed by some states, prohibits attorneys from engaging in “illegal conduct involving moral turpitude,” (DR 1-102(A)(3) or engaging in “illegal conduct which is prejudicial to the administration of justice”, (DR 1-102(A)(5). Under DR-103(A), attorneys are required to report any unprivileged knowledge of a fellow attorney’s or judge’s violation of DR 1-102, which under case law has been held to include substance abuse, to the state disciplinary agency. The duty to report suspected substance further clarified in Model Rule 8.3(a) of the ABA Model Rule of Professional Conduct which require an attorney to report fellow attorneys and judges to the disciplinary agency whenever there is raised, ” a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

The duty to report an attorney suspected of an ethical violation and the seriousness for which the state bar views this duty was highlighted in the case, In re Himmel, (1988) 125 Ill.2d 531, 490 M.E.2d 1062. In Himmel, the case did not involve drugs or substance abuse but rather knowledge of the attorney of another attorney’s conversion of client trust funds. The disciplinedattorney did not report his knowledge claiming attorney client privilege. The Illinois Supreme Court rejected that defense and suspended the attorney for one year.

The ABA Standing Committee on Ethics and Professional Responsibility has stated that, “In those instances in which a lawyer is required to report the professional misconduct of another, the lawyer’s failure to report would itself violate Rule 8.4(a).” (Misconduct), Formal Opinion 94-383 (1994). When the knowledge of the ethical violation arises in the course of representing a client, the attorney may be precluded under Model Rule 1.6, from revealing the information without first obtaining the client’s consent, In re Ethics Advisory Panel Opinion, (1993) 627 A.2d 317.

The most troubling aspect of the duty to report derives from the situation in which it most often arises. The attorney most often to observe another attorney’s impairment or other ethical violation is that impaired attorney;s associate or partner. It has, in the past been alleged, that partners and associates have an attorney-client relationship between themselves which precludes as associate or partner from reporting suspicions of misconduct obtained as a result of the attorneys’ relationship. This defense has been rejected by several courts. In the case, In the Matter of Curran, (1994) 5098 N.W.2d 429, the Wisconsin Supreme Court held that requirement of an attorney to report ethical violationsextended to the activities of partners and associates of the attorney’s law firm. In a New York case, Wieder vs. Skala (1992) 609 N.E.2d 105, the court held that it is an implied and essential element of every employment contract between a law firm and the attorneys working for the firm that the ethical standards, rules and obligations imposed by the state’s canons of professional responsibility will be followed. This includes the obligation of attorneys working for the firm to report any suspected ethical violations by other attorneys working for the firm to the state disciplinary agency. The Connecticut Bar Association’ Committee on Professional Ethics, in its Informal Opinion 89-21 (1989), held that an attorney was subject for discipline for not reporting his partner failing to file a lawsuit within the statute of limitations. The Committee took the position that the attorney had the duty to report his partner even though by making the report he “may have been reporting himself.”

The cases to date for which any attorney has been sanctioned for not reporting ethical violations have not involved substance abuse. However, given the extreme importance which is now being paid to eradicating substance abuse it is only a matter of time until disciplinary action arising from a failure to report another attorney’s substance abuse are filed. By prosecuting such case, the state bars will be reinforcing its position that substance abuse is something that will not be tolerated in the legal profession and also to force attorneys to report their suspicions of otherattorney’s impairment in order to protect themselves from discipline. In short, a lawyer or judge who does not report reasonable suspicions of substance abuse to the state bar, is treated much as an aider and abettor of a crime. As such, an attorney who does not report suspicions of another attorney’s impairment may be subject to discipline.

An interesting aside is whether an attorney can be sued by third parties for damages incurred by the attorney who was not reported. For instance, if an attorney, who was not a partner of attorney, knew the attorney was impaired and handling an estate. By not reporting the impaired attorney as required by the disciplinary rules, will that attorney be liable for the losses sustained by the state as a result of the other attorney’s impairment which could have been avoided had the impaired attorney been timely reported? In other words, does the duty to report suspected attorneys of abuse give rise to an implied duty to the clients of that attorney? Is an attorney liable for negligence to the clients of any impaired attorney which the first attorney had a duty to report and did not? It would seem that when an attorney fails to report and impaired attorney in violation of the ethical duty to do so, the first attorney may become subject to the damages incurred by the clients of that attorney which would have been avoided had the report been made. As with any lawsuit, the proof of damages would have to be made and division would have to be made between damages occurred prior to the time that the report should have been made andafterward. Even so, though, it appears that a cause of action for negligence by the clients of impaired attorneys could be made against any attorney who knew of the impairment and failed to report it. In the eventually of such a suit, it is unclear as to whether a malpractice policy would cover this situation. An insurance company may take the position that its coverage is limited to the practice of law not the violation of ethical duties. If so, the malpractice insurance company could allege, that it would be responsible for paying the damages cased by an attorney’s drunk driving because drunk driving also violates the ethical standards of an attorney while not related to the actual performance of legal work for a client.

2. DISCIPLINARY ACTION FOR SUBSTANCE ABUSE

It has only within the last two decades that substance abuse in the legal profession should be ground for disciplinary action. In the past, unless the substance abuse related to another ethical violation, such as misappropriation of client trust funds, it was not addressed by the state disciplinary agencies. Today, however, an attorney may be disciplined for substance regardless of whether it affects the attorney’s law practice. The substance abuse, itself, has become the grounds for discipline. Most state bars take the position that the discipline for substance is not for punishment but, instead, is for deterrence from future use. The effect if, however, the same in each instance. The punishment meted out to the impaired attorney depends on the state law in question.Some states take into account the attorney’s willingness to enter treatments a mitigating factor. Other states, given weight to treatment as a mitigating factor for certain violations.

Oregon is a state, for instance, which mitigates an attorneys’s punishment for substance abuse on both the facts of the case and the willingness of the attorney to seek help. In the case, In Re Germundson, 301 Or. 656, 724 P.2d 795, the court held in a case involving ethical violation involving loans with a client and the handling of a client’s estate that:

“Abuse of alcohol or other mind-altering substances is a common factor in professional misconduct as it is in criminal and civil cases. In disciplinary cases, we distinguish its role is assessing culpability from its significance in determining what is required to protect the public against future misconduct. Culpability under the disciplinary rules require different mental elements which may range from intent through knowledge and negligence to strict liability and it

is possible that a lawyer’s innocent dependency on some drug without his knowledge may incapacitate him from the required degree of mental judgment. See In Re Holman 297 Or. 36, 682 P.2d. 243.

****

The object of professional discipline is not punishment but deterrence and protection of the public against future unprofessional conduct. Having considered the evidence of the accused’s professional misconduct and of his determined effort’s to avoid the future use of alcohol, we conclude that disciplinary action similar to that imposed in the case In Re Paauwe, 298 Or. 215, 691 P.2d 97 (1984) is appropriate here.”

In this case, the attorney was suspended for 63 days, ordered to refrain from the use of alcohol and ordered to participate in a substance abuse program in order to retain his license to practice law. As seen in the above holding, Oregon places a great deal of weight upon the attorney’s willingness to receive help as amitigating factor in determining punishment.

In contrast to the Oregon which holds that am attorney’s willingness to seek treatment as a mitigating factor, New Jersey holds that the misappropriation of client funds is grounds for disbarment even when substance abuse is a factor and the attorney is willing to enter treatment. In the case, In Re Hein, 104 N.J. 297, 516 A.2d 1105 (1986) the New Jersey Supreme Court disbarred an attorney for violating three disciplinary rules and misappropriating less than $1,500 of client’s funds. The disciplinary violations were neglect of legal matters generally, DR. 6-101(a), failure to carry out’s client’s contract of employment, DR. 7-101(A)(2), and mispresentation of legal matters to clients, DR. 1-102 (A)(4). Mr. Hein argued that this problems were the result of an alcohol dependency problem which he was seeking treatment. Mr. Hein also argued that his alcohol impairment prevented him from forming the necessary criminal intent to misappropriate the funds. The Illinois Supreme Court was unmoved by Mr. Hein’s defense and did not consider his alcohol treatment program as a mitigating factor or even the fact that less than $1,500 in client funds had been misappropriated. The Court held, that Mr. Hein did, “did not demonstrate…the kind of loss of competency, comprehension or will that can excuse misconduct.” The court after voting 7-0 for disbarment stated in its opinion that the, “primary concern must remain protection of the public interest and maintenance of the confidence of the public and integrity ofthe Bar.”

In a subsequently similar case dealing with alcohol dependency and misappropriation of client funds, In Re Crowley 105 N.J. 89, 519 A.2d 361, the Illinois Supreme Court ignored a recommendation of the Disciplinary Review Board (DRB) and disbarred the attorney:

“We respect the views of the DRB and the AAC and have ourselves struggled to resolve the dilemma of recognizing alcohol as the disease that it is, while recognizing the devastating effect that misappropriation has had upon the public confidence in the bar and the court whatever the cause of the misappropriation.

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In four recent cases, In Re Hein 104 N.J. 297, 516 A.2d 1105 (1986), In Re Romana 104 N.J. 306 (1986), In Re Canfield 104 N.J. 34, 516 A.2d 1114 (1986) and In Re Ryle 105 N.J. 10, 518 A.2d 1103 (1987), we found it necessary to disbar attorneys

of previously good record whose dependence on drugs and alcohol had contributed to or caused the loss of judgment that led to misappropriation of clients funds. We do not find the circumstances of this case markedly different in degree or kind.”

New Jersey has adopted the ironclad rule that misappropriation of a client funds is automatic disbarment regardless of any steps taken in mitigation and regardless of the mounts actually misappropriated. It seems rather harsh for any attorney to lose his license after all the work to get it because of a dependency on alcohol or drug which only involved the misappropriation of less than $1,500. Nonetheless, in New Jersey, there is no mitigation permitted, even when drug or alcohol addiction was a factor, for the misappropriation of funds regardless of the amount.

Most states have adopted a mitigating approach towards when dealing with impaired attorneys. The majority of states do notfollow New Jersey’s lead and automatically disbar attorneys in situation involving misappropriation of client funds. Minnesota was one of the first states to adopt a mitigating factors approach in determining discipline for impaired attorneys, The Disability Defense: How It Serves to Mitigate Charges of Professional Misconduct by Attorneys, 12 Wm. Mitchell Law Review 119 (1985).

Most states have followed the Minnesota lead and permit mitigating factors to be presented in determining the discipline to be meted out to an impaired attorney.

An example of the use on mitigation in substance abuse disciplinary actions is that of the District of Columbia case, In Re Kersey (1987) 520 A.2d 321. The Board of Professional Responsibility found that Mr. Kersey’s “pattern of dishonesty and deceit was so pervasive that disbarment was the only appropriate sanction.” The violations included four complaints of conduct involving dishonesty, five complaints of failing to respond to the bar inquires, an improper withdrawal from a case without taking steps to protect a client’s interest, two complaints of neglect, a complaint involving the intentional failure to pursue the lawful objectives of a client, one complaint of intentionally prejudicing a client, three complaints of commingling funds two of which involved misappropriation of funds, four complaints of failure to maintain records and three complaints to pay over client funds. Mr. Kersey through himself on the mercy of the court and alleged thatalcoholism had been a problem since high school. Mr. Kersey asked the court to mitigate the disbarment because he had entered into an alcohol detoxification program. The court considered Mr. Kersey’s appeal for mitigation. The court recognized that alcoholism is a mitigating factor in disciplinary factors in many states. The Court went on to approach a “but for” test in order for alcoholism to be considered a mitigating factor. The court held that for mitigation the “but for” standard “must be met in order to prove causation in disciplinary actions.” The court held that in order for mitigation to apply, the attorney must convince the court that the only reason the misconduct occurred was because the attorney had been impaired as a result of alcoholism. In this case, the court stated, that it believed Mr. Kersey and held that but for his alcoholism none of the misconduct would have occurred. In disciplining Mr. Kersey, the court placed him on probation for five years with a sobriety monitor and a financial monitor to assure compliance with the record keeping rules of the bar.

There is a world of difference between the treatment of New Jersey in Hein and the District of Columbia in Kersey. In Hein, the attorney was disbarred for misappropriating less than $1,5000 despite entering into a treatment program. In Kersey, the attorney misappropriated funds in two cases, failed to pay clients in three cases and commingled funds. The degree of culpability in Kersey was significantly worse than in Hein by several degrees of magnitude.However, in New Jersey, the attorney wads disbarred whereas in the District of Columbia the attorney was only placed on probation and ordered not to do it again. This points out that attorney discipline is not uniform throughout the United States. Attorneys are disciplined in accordance with the laws of the state in which they are licensed. In the case of an attorney being licensed in multiple jurisdictions the attorney will face discipline separately in each state. If for example, Mr. Hein had been licensed in both New Jersey and the District of Columbia, he would have been disbarred in new Jersey but would probably only have been placed on probation in the District of Columbia.

The key to the use of mitigation in disciplining attorneys for substance abuse is the likelihood of their rehabilitation and recovery. One of the first states to recognize rehabilitation and recovery from chemical or alcohol dependency was South Dakota, In the case In Re Walker, (1977) 254 N.W.2d 452, the attorney was an alcoholic. Mr. Walker was disciplined for a failure to file tax returns, driving while intoxicated and neglect of his legal duties. The Referee in the Walker stated the only reason he was not recommending disbarment was the fact that Mr. Walker was an alcoholic. Based upon the Referee’s recommendations, the Court imposed a two year suspension subject to the attorney not drinking or violating any disciplinary rules. The court stated that its disciplinary programs were not to punish attorneys but rather to protect the public. The court was satisfied that Mr. Walker hadrehabilitated himself and when coupled with his continued abstinence from alcohol a short period of suspension rather than outright disbarment would adequately service the public interest.

A similar holding on rehabilitation and recovery was made in Illinois in the case In Re Driscoll, (1979) 85 Ill.2d 312, 423 N.E.2d 873. Mr. Driscoll had twice converted client funds for his own personal use. The disciplinary agency had recommended Mr., Driscoll’s disbarment. Mr., Driscoll appealed the agency’s recommendation. At the time the court heard the appeal, Mr. Driscoll had finally overcome his alcohol addiction. Mr. Driscoll proven to the court that he has abstained from alcohol for over two years and was both physically and mentally fit to practice law. The Court recognized the progress Mr. Driscoll had made in overcoming his alcoholism. instead of disbarment, the Court imposed a 6 month suspension and ordered Mr. Driscoll to continue participation in an alcohol treatment program. The court justified the reduced discipline because Mr. Driscoll no longer posed a danger to his client and that a greater punishment was not warranted given his rehabilitation. Again this case differs from Hein, where a New Jersey attorney was disbarred for a relatively minor conversion of client funds despite rehabilitation.

The california Supreme Court adopted the Walker holding in its decision Tenner vs. State Bar (1980) 28 Cal.3d 202, 617 P.2d 486. The Court stated that the prime purpose of disciplinary actionswere to protect the public and not to punish attorneys for their substance abuse. There in a case where the attorney had forged document and misappropriated client funds, the Court imposed probation rather than disbarment on the conditions that the attorney repay the clients, abstain from alcohol and enter an alcohol treatment program.

The Disciplinary Board of the Supreme Court of Pennsylvania in the case, In Re Anonymous, (1979) No. 8 D.R. 76, 12 Pa D&C 3d 417, permitted a recovered and rehabilitated attorney to return to practice without being placed on probation. The rehabilitated attorney was found not to pose a risk to the public so probation was not necessary.

The majority of states will take into account an attorney’s willingness to seek treatment and to rehabilitate himself in determining whether an attorney should be disbarred, suspended or placed on probation as a result of conduct performed while under an addiction to drugs or alcohol. There is no guarantee that just because an attorney enters into a drug or alcohol treatment program that he or she will not be disbarred. The willingness to seek treatment is an important factor in determining the sanctions to be meted out to the attorney but it is not the only factor. the purpose of discipline as repeatedly stated by the courts is to protect the public. For this reason, the effects of the sanctions on the attorney are often secondary to the message which the disciplinary board or court are attempting to send to the public.

3. EMPLOYEE ASSISTANCE PROGRAMS

The question often arises as to what obligations an employer, in the legal profession, owes an impaired employee. That question has been answered by a variety of state and federal employment laws, the most important of which is the Americans With Disabilities Act, ADA. Under the ADA and similar state acts, an employer is not permitted to discriminate against an employee because of a handicap. Both alcohol and drug addictions are considered to be protected handicaps under the ADA. The ADA requires that instead of firing an employee because of drug addiction or alcoholism must make a reasonable accommodation for the employee’s chemical dependent. this usually translates into the employer being required to offer the employee a drug rehabilitation program as an alternative to firing the employee. if the employee agrees to enter the program and passes random drug or alcohol tests then the employee can not, under the ADA and many state laws, be fired because of the past alcohol or drug use.

The significance to the legal employer is that, perhaps, in no other field do people work so hard with their minds. Any chemical agent which interferes with the functioning of an attorney, paralegal, or legal secretary will severely effect the quality of work of that person. For this reason. law firms and legal departments do not want chemically dependent people working for them. The risk of a malpractice action increases significantly for attorney who are chemically dependent. The potential of malpracticeclaims against an law firm increases even more when members of the support staff are also chemically dependent. Nonetheless, these law firms, as with any other employer, are no longer permitted to fire someone just because they are drug addicts or alcoholics without first attempting to accommodate their disability.

As a result, it has become necessary for employers to consider the creation of an Employee Assistance Program, (EAP). The most effective EAP requires the law firm to have a written policy setting forth the intended treatment and the firm’s strong policy in having both drug and alcohol dependency treated as a condition for continued employment, A History of Job-Based Alcoholism Programs 1900-1955, 11 J.Drug Issues 171 (1981).The success of the EAP often is dependent on the degree of confidentiality maintained by the employer. Failure to maintain such confidentiality may expose the employer to an invasion of privacy suit for the public disclosure of private facts.

Almost all states bars have also developed their own Lawyers’ Assistance Program (LAP) for the members of the state bar. These LAP’s are usually not open to the support staff of a law firm so the firm must therefore establish a EAP program of its own for the non-attorney employees. In many instance, the employer simply agrees to pay for the attendance of the employee in a drug or alcohol treatment program such as Alcoholics Anonymous or Narcotics Anonymous. Many law firm, however, wish to run their own EAP in order to assure compliance and have control over the treatmentgiven the employee. In running an EAP program, the law firm should hire qualified counselors and trained professional to conduct the treatment. The advantage of an employers in running their own EAPs are that they can virtually guarantee confidentially. In the legal profession, confidence in the law firm or attorney is the basis upon which a practice is built. If the pubic discovers that an attorney or the keep members of an attorney’s staff are attending drug or alcohol treatment programs that will lessen the confidence of the clients and potential clients in the firm. For this reason, many large law firms have their own training and counseling programs which are closed to outside participants so no one, who is not involved with the company will know who is attempting the program. This prevents an outside participant in the treatment program from casually mentioning that a member from a law firm is seeking drug or alcohol treatment.

It is very important that law firms adopt some type of employee assistance policy for their non-attorney employees. As for their attorney employees, many state bars now have LAP’s for which they can attend. if the employer does not want their impaired attorney’s to attend a state bar LAP the employer may send the attorney to outside LAP or create a LAP of its own. LAPs and their operations, as they relate to attorneys, are discussed in the next chapter. In deciding whether to send an impaired attorney to an outside LAP or to conduct one of its own, a law firm must evaluate the requirement to report an impaired attorney to the state bar. Insome states, the duty to report an impaired attorney is mandatory regardless of whether the attorneys is attending an in-house or independent LAP. In other states, as long the attorney is attending an LAP, their is no requirement to report the impaired attorney. The reason for not reporting an impaired attorney, who is receiving treatment, is that it may interfere with the treatment which, afterall, is the very reason behind requiring the report to be made, “The Lawyer’s Duty to Report Another’s lawyer’s Unethical Violations in the Wake oh Himmel”, 1989 University of Illinois Law Review, page 977.

CHAPTER ELEVEN

TREATMENT FOR THE IMPAIRED ATTORNEY

INTRODUCTION

There is no easy cure for substance abuse. By its very nature an addiction is difficult to overcome. If it was easy to beat a drug or alcohol addiction, then the person was not really addicted. It has been as a result of the recognition of this difficulty to beat an addiction that treatment programs have been created to assist an impaired legal professional in overcoming an addiction. Studies indicate that substance abuse is especially acute in the legal profession. While, for example, ten percent of the population is thought to suffer from alcoholism, an Oregon State Bar study estimated that 15 percent of its attorneys and a Washington State Bar study estimated that 18 percent of its attorneys were suffering from alcohol addiction. “Are Lawyers Distressed?… and How!”, Washington State Bar News, Feb. 1988, Substance Abuse Workshop, Annual Meeting of the ABA, Aug. 1988.

The huge number of impaired attorneys have been affecting the reputation of the legal profession. There is a strong relationship between the number of impaired attorneys nationwide and the number of grievance complaints and malpractice claims filed against attorneys. It is estimated that between forty percent and sixty percent of all disciplinary actions nationwide involve attorneys with either a drug or alcohol dependency problem, “HelpingAlcoholic Lawyers,” ABA Journal, Nov. 1986. The state bars of Arizona, California and Oregon have estimated that drug or alcohol addiction among their attorneys involved in disciplinary actions is even higher than the national average at between fifty percent and seventy percent, Substance Abuse Workshop, Annual meeting of the ABA, Aug. 1988.

Oregon has been in the forefront of studying and providing treatment assistance to impaired attorneys. The Professional Liability Fund of the Oregon Bar has conducted two studies on the problem of substance abuse. The first studied 100 disciplined attorneys to determine the percentage of whom were chemically dependent at the time of the incident. The study discovered that sixty-two percent of the attorneys were chemically dependent at the time. This figure was higher than the highest rate, 60%, estimated for the national average. In a follow up study, the Oregon Bar compared the malpractice claim rate against attorneys both prior to entering treatment and one years afterward. It was found that while prior to entering treatment, sixty percent of the attorneys had a malpractice claim filed against them. After one year of treatment, the number of attorneys, of these attorneys, who had new claims file against them dropped to just two percent. The success of the treatment in reducing malpractice claims had resulted in the reduction of malpractice premiums in Oregon of ten percent, Substance Abuse Workshop, Annual meeting of the ABA, Aug. 1988. Thereduction in malpractice premium rates helped all Oregonian attorneys and as such it further added to the impetus of getting all impaired attorneys into treatment. The Oregon State Bar studies proved that is a direct correlation between malpractice insurance rate and the number of impaired attorneys receiving treatment. As such, there is a financial incentive, in addition to their professional duty to do so, for all unimpaired attorneys to report impaired attorneys to the state bar.

Texas, in 1988, surveyed its grievance committees, for its 17 bar districts, on the number of impaired appearing before them. The Texas bar found that substance abuse was a factor in 9.2% of all inquiries, which are the initial allegations of wrongdoing against an attorney. In Texas, if the inquiry involves circumstances that would be a violation of the Code of Professional responsibility, a Formal Complaint is filed. It was found that 10.6% of all complaints against attorneys included substance abuse. If the complaint against an attorney warrants discipline and a judgment can not be negotiated with the attorney, then a petition is filed with the District Court. The Texas Bar found that 14.3% of all disciplinary petitions against attorneys involved substance abuse. The Texas Bar survey found that alcohol was a factor in 41% of all inquires and that other drugs were factors in another 16% of the inquiries. The Texas also disclosed that only 18% of its grievance committees referred its disciplined attorneys to specialized treatment programs.

The recognition of the fact that substance abuse in a problem in the legal profession has ben slow to develop. The fact that Texas only referred 18% of its impaired attorneys to treatment, as late 1988, demonstrates that it was not given a high priority in some state bars. That view has since changed. Today, substance abuse is viewed as serious problems and is treated accordingly by state bars and courts. In 1988, 86% of all state bars have instituted treatment programs for their attorneys not only for the reason of helping those attorneys but also to reduce the high malpractice premiums paid by all of their members.

1. TREATMENT PROGRAMS FOR ATTORNEYS

Every state bar has developed its own treatment program for impaired attorneys. One of the most common treatment programs is for the state bar to approve or certify non-profit treatment organizations for use by their impaired attorneys, either in place or, in addition to any program of their own. In Colorado, for example, Concerned Lawyers, Inc., CLI, is a non-profit corporation for use by drug or alcohol impaired attorneys. The members of CLI volunteer to assist attorneys in overcoming their addiction by providing counseling, encouragement and, when necessary, acting in liaison with grievance proceedings. The CLI attorneys will also assist in keeping the impaired attorney’s office functioning while the person is receiving treatment by keeping files up to date, making court appearances and getting continuances as necessary. The CLI utilizes the “Twelve Step” approach developed by Anonymous (AA)and used in various forms by Cocaine Anonymous (CA), and Narcotics Anonymous (NA). Each of these organizations, propound complete abstinence from alcohol and mood altering drugs and are grounded on providing peer assistance. In all of the above programs, the intent is to aid in the attorney’s recovery not to punish or criticize. as such, these organizations are not judgmental.

(a) TWELVE STEP PROGRAMS

The most effective treat programs are based upon the twelve step system originally developed by Alcoholics Anonymous. The program is devoted to sobriety through self-help and mutual support. Founded in 1935, AA’s stated purpose is:

“Alcoholics Anonymous is a fellowship of men and women who share their experience, strength and hope with each other that they may solve their common problem and help recover from their alcoholism.

The only requirement for membership is a desire to stop drinking. there are no dies or fees for AA membership; we are self-supporting through their own contributions. AA is

not allied with any sect, denomination, politics, organization or institution; does not wish to engage in any controversy, neither endorses nor opposes any causes. Our primary purpose is to stay sober and help others achieve sobriety.”

It is the desire of the participant to stop drinking that is the core of the AA’s effectiveness. This desire to quit also serves as the basis for the drug treatment programs based upon the AA model. Because of the shared desire to quit, the AA groups, though loosely organized, are strongly cohesive and prove substantial support and moral assistance on the members to maintain their sobriety. The commitment of the members to help each is evidenced by the factthat members are given the phone members of peer members, also called “sponsors”, to call, at any time, that they feel the need to speak with someone to avoiding drinking.

Alcoholics Anonymous has adopted, Twelve Traditions, as a guide for its operations. These twelve traditions are:

“1. Our common welfare should come first: personal recovery depends upon AA unity.

2. For our groups purpose there is but one ultimate authority – a loving God as he may express Himself in our group conscience. Our leaders are but trusted servants; they do not govern.

3. The only requirement for AA membership is a desire to stop drinking.

4. Each group should be autonomous except in matters affecting other groups or AA as a whole.

5. Each group has but one primary purpose – to carry its message to the alcoholic who still suffers.

6. An AA group ought never endorse, finance, or lend the AA name to any related facility or outside enterprise, lest problems of money, property, and prestige divert us from out primary purpose.

7. Every AA group ought to be fully self-supporting, declining outside contributions.

8. Alcoholics Anonymous should remain forever nonprofessional, but our service centers may employ special workers.

9. AA, as such, ought never be organized; but we may create service boards or committees directly responsible to those they serve.

10. Alcoholics Anonymous has no opinions on outside issues; hence the AA name ought never to be drawn into public controversy.

11. Our public relations policy is based on attraction rather than promotion; we need always maintain personal anonymity at the level of press, radio and films.

12. Anonymity is the spiritual foundation of all or Traditions, ever reminding us to place principles before personalties.”

The Twelve Traditions stress that the purpose of AA is to place the responsibility for a member’s success on the individual. Leaders in AA exist only to serve the members and that the groups themselves are autonomous. The groups are encouraged to be self-supporting while not seeking outside contributions. AA is to maintain a policy of non involvement in outside issues not related to achieving and maintaining sobriety in both members and society.

The purpose of AA is to stress the will, power and worth of the individual. It is through a member’s recognition of self-worth and merit along with the concern of fellow members for everyone’s desire to achieve sobriety that creates an cohesive and caring group to achieve that sobriety.

Studies conducted by Alcoholics Anonymous shows that dual dependency on both alcohol and drugs among it members have been increasing. Table 1 shows that women have a higher percentage of dual chemical pendency than men.

END OF SAMPLE VIEW

The percentage of women members have been growing steadily which is a reflection of the increasing number of female alcoholics in society. In 1968, the percentage of women members was 22% which increased to 31% in 1980. Between 1977 and 1980, 34% of all new members to AA were women. The largest increase in new members has been in the age group 30 years or less which increased, between 1977 and 1980, from 11.3% and 14.7%. In addition to the increase in the number of women members and members below 30 years of age, the percentage of member with dual drug abuse also increased from 18% in 1977 to 24% in 1980.

Membership in AA has ben steadily increasing. Table 2 shows the membership growth in AA from 1968 through 1980.

END OF SAMPLE VIEW

It is estimated that only 5% to 10% of all alcoholics are members of AA. Since 10% of the population is thought to be an alcoholic, this means no more than 1% of the general population is receiving alcoholic treatment in AA. This means than 90% of the alcoholics in America either are not receiving treatment for their alcoholism or, in some instances, receiving it elsewhere.

Alcoholics Anonymous claims an overall success rate of 75%. AA claims a success rate of 50% from members with no relapse and another 25% from members who have an relapse and subsequently return for further help. There have been studies which support an AA success rate of between 50% and 60%. AA has grown into a worldwide organization with chapters throughout the United States. In 1958,there were 6,000 groups with worldwide membership of about 150,000. In 1980, worldwide membership exceeded 1 million members.

Alcoholic Anonymous is an nonprofit corporation. AA has two operating bodies, World Services, Ins., and Grapevine, Inc. Each ofthe governing bodies has a separate board of trustees. On a local level, the organization is intentional kept small and relatively informal. The leadership of local groups is rotated. The purpose of the leadership rotation in the local groups is to keep the members from developing an dependence on a particular leader for their sobriety but to reinforce the believe that sobriety comes from the internal desire to be sober. Alcoholics Anonymous has two types of meeting, open and closed. All AA open meetings are open to the public regardless of whether a person has been or intends to join AA. Attendance at closed AA meetings is restricted to alcoholics regardless of whether they are AA members or not. The closed meetings are themselves further divided into “step” meetings attributed to one of AA’s twelve steps.

Alcoholics Anonymous is structured around a twelve step program leading to sobriety. The Twelve Steps stresses personal responsibility and a faith in a divine power as a basis for which a person can work towards sobriety. The Twelve Steps of Alcoholics Anonymous are:

“1. We admitted we were powerless over alcohol – that our lives had become unmanageable.

2. Came to believe that a power greater than ourselves could restore us to sanity.

3. Made a decision to turn our will and our lives over to the care of God as we understood him.

4. Made a searching and fearless moral inventory of ourselves.

5. Admitted to God, to ourselves, and to another human being the exact nature of our wrongs.

6. Were entirely ready to have God remove all these defects of character.

7. Humbly asked Him to remove or shortcomings.

8. Made a list of all person we had harmed, and became willing to make amends to them all.

9. Made direct amends to such people whenever possible, except when to do so would injure them or others.

10. Continued to take personal inventory and when we were promptly admitted it.

11. Sought through prayer and mediation to improve our conscious contact with God as we understood Him, praying only for knowledge of His will for us and the power to carry that out.

12. having had a spiritual awakening as a result of these steps, we tried to carry this message to alcoholics, and to practice these principles in all our affairs.”

The Twelve Steps program is structured around the awakening and strengthening of spiritual faith although the program is nondenominational. In the beginning, the program stresses the acknowledgement of the member that the use of alcohol has gotten out of hand. No treatment can be effective as long as the person denies that there is a problem, be it with alcohol or any other drug. Only after the person recognizes and believes that there is real problem with alcohol can real process towards achieving sobriety be made. The second and third steps regard the realization that there is a Supreme Being with whose help sobriety can be obtained if the person has faith and belief in the Supreme Being as He is understood. Once the first three steps are accomplished, amember is in position to advance to the remaining steps. The steps, four through twelve, are designed for the development of spiritual belief and the realization of the harms inflicted upon others as a result of the alcoholism. The creation of a new self-image based upon recognized self-worth and by reinforced by the goal of helping others achieve sobriety is at the center of the Twelve Steps.

While there is a deep root in the spiritual belief of a Supreme Being, AA is not a cult. Members are free to come and go and, in fact, few member ever stay longer than ten years. AA is premised upon the belief that alcoholism is the manifestation of the acholic’s poor self-esteem or the sense of an inability to control his or her life. AA, as with most treatment programs, stress the need to abstain while attending meetings. The AA slogan is, “Don’t drink and go to meetings.” AA believes that the self-worth and personal development fostered in the meetings will replace a member’s dependency of alcoholic to compensate to the lack of self-worth or control. It is certainly true, that while attending meetings, members do not drink. It is by attending such meetings and not drinking over an extended period of time that the members come to realize that they do not need alcohol or other drugs in their lives and in fact their lives will be significantly better without them. The twelve Steps are designed to help a member recognize his or her own value as an individual and the ability to contribute to society and to their families without the use of alcohol or drugs.

From the very beginning, AA strives to get its members to recognize that he is “powerless over alcohol”. New members are urged to come to one meeting per day for three months, 90 meetings in 90 days. This is a crash program designed to keep the new member as occupied as possible during the first fe months of membership. It is this period which is considered the most important time frame for AA membership, It is during this period that the member will most likely make the decision to stick with the program or quit. People turning to AA are usually desperate for some type of help.

AA, by its structured program, is geared to keeping a person as far away from the desire for alcohol as possible. Each new member is given a “sponsor” an experienced member. The sponsor is there for the new member to confine and when to talk the new member through periods of anxiety. When a member has slipped off the wagon and resumed drinking, two AA members will visit that person and attempt to persuade the person to cease drinking and to resume sobriety.

Alcoholics Anonymous has become a mainstay in the treatment of alcoholism and drug addiction. As a result, many state bars refer their attorneys to AA for alcoholism treatment because its dedication to building strong self-worth and character as a basis for sobriety. Even in organizations which do not stress the AA’s belief in a Supreme Being as a source of inspiration, the AA’s tenets of developing self-worth and character are still utilized as a basis upon which their programs are built.

b. THE ABA PROPOSAL OF TREATMENT

The American Bar Association issued a preliminary draft on January 1, 1990, entitled “MODEL LAW FIRM/LEGAL DEPARTMENT PERSONNEL IMPAIRMENT POLICY AND GUIDELINES. The report accompanying the preliminary draft stated that:

“This effort is in keeping with the ABA’s commitment to assisting lawyers and their support personnel who have impairment problems through early intervention, counseling, treatment and rehabilitation by qualified outside agencies or persons. It is hoped that the model policy statement will not only offer guidance to the legal profession but also will be an impetus for other professionals and organizations to do the same. In this way, the ABA hopes to make a meaningful contribution not only to those affected but, by addressing drug and alcohol abuse, to assuring a drug free America.

The policy statement and guidelines have been developed to be adapted to different settings, from large to small law firms, corporate and public legal departments, legal services agencies and bar association offices.”

The stated purpose of the draft help set forth guidelines and

procedures for very legal office, be it public or private, large

or small, for the dealing with impaired legal professionals. The

draft stated as follows:

“The policy of (the entity) is to establish and maintain effective methods for providing assistance to its personnel, both professional and administrative, who have impairments of varying natures and securities. The conditions can range from minor problems that affect work performance to major disabilities or impairments, including drug and alcohol abuse and dependency. The policy is to accomplish this objective though early intervention, counseling, treatment and rehabilitation by qualified outside agencies and persons.”

The ABA recognized the need for such a policy and guidelines in the

accompanying report which stated:

“Impairment of professional and administrative personnel directly and adversely affects the ability of a law firm or legal department to provide quality legal services and can lead to exposure to unnecessary professional liability, to

the violation of professional conduct standards, to loss of public esteem, and even to criminal law violations. Major contributors to impairment are clinical depression, chemical dependency and drug or alcohol abuse. Alcoholism and other chemical dependency taken together have been estimated to be a factor in 40 to 60 percent of professional discipline cases.”

The ABA has long recognized the deleterious effects of substance

abuse and has supported virtually every major piece of substance

abuse legislation pertaining to identification and treatment such

as the Alcoholism and Intoxication Treatment Act (1972), the Drug

Dependence Treatment and Rehabilitation Act (1974) and the Uniform

Alcoholism and treatment Act (1975).

The ABA draft and accompanying report recognize that drug

and alcohol related offenses are treated by most state bars as a

basis for professional discipline. However, most state bars take

into consideration, as a mitigating factor, the willingness of an

attorney to enter into drug or alcohol rehabilitation programs. In

the disciplinary action, In re Lundardi (1989) 127 Ill.2d 413, 537

N.E.2d 767, an attorney had pled guilty to the possession of

cocaine. In disciplining the attorney, the court viewed in

mitigation that the fact that the attorney had a “remarkable” recovery and had performed more hours of community service than required under the criminal sentence. In the case, People vs. Geller (1988) 753 P.2d. 235, a Colorado court held that entrance into a rehabilitative program was a mitigation factor in imposing a three year suspension for a criminal conviction of possession of an unlawful substance. In Florida vs. Weintraub (1988) 528 So.2d 367, an attorney was suspended for 90 days with a two years of probations for the possession of cocaine provided the attorney completed the Florida Lawyer’s Assistance Program.

The ABA recommends that any drug or alcohol assistance program set up for a law firm or legal department should be structured to promote self-referral as it primary source of admissions although admissions through referrals should also be accommodated. The existence od the assistance program should be widely publicized throughout the sponsoring organization along with the procedures for entry into it.

The cost for such assistance program is recommended by the ABA to be, at least partially born by the organization, i.e. the employer. The ABA states that, “Insurance coverage may be available for some of the treatment and rehabilitative services. Law firms and legal departments should aggressively seek such insurance and should encourage insurers to provide coverage for a range of treatment and rehabilitative services.” The ABA takes the position that the employer owes a responsibility to their employees to make available treatment for drug and alcohol addition. This draft was written prior to the enactment of the American with Disabilities Act (ADA) in 1992. Nonetheless, the ADA now imposes the duty upon employers to make reasonable accommodation to their employees’ handicaps which include drug and alcohol addiction. Therefore before an employee can be fired from a law firm or legal department because of their drug or alcohol addiction, the employer must have made a reasonable attempt to accommodate them. This will usually be held to mean offering treatment or rehabilitative services if the employer can afford it.

The draft report left open the issue of reporting an attorney’s participation to the state disciplinary agency. The draft stated:

“5.2 While a primary ingredient for the successful implementation and operation of this policy statement is confidentially, when the unprivileged disclosure of violations of criminal law occur within the context of (the entity’s) impaired personnel policy, there may be an obligation to notify law enforcement authorities. In some instances, moreover, lawyers who receive such unprivileged disclosures may have an overriding obligation under applicable professional conduct standards to report to an appropriate professional disciplinary agency. in most instances, however, there will be neither a criminal law nor a professional conduct violation, and confidentially may be maintained.”

The ABA’s conclusion that in most instances that an attorney’s participation in an assistance program usually would not need o be reported because no professional violation has occurred, is not realistic. Model Rule 8.3(a) requires an attorney to report suspicions which raise, “a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” The very fact that an attorney participates in an lawyer assistance program raises the inference that the attorney has a substance abuse problem because few persons would ever enroll in such a program unless they actually had such a problem. Whether or not such an attorney must be reported depends on the law of the state in question. Some states view that an attorney’s participation in such an assistance group is similar to an attorney-client relationship and therefore fellow attorneys participating in the group, are not required to disclosed the attendance, Delaware 8.3(c), Illinois Rule 4-101, Kansas Rule 8.3(c), Maine Rule 3.2(e)(3), New Hampshire Rule 8.3(c), Oregon DR 1-103 (E), South Dakota Rule 8.3(d), Washington Rule 12.11 and 12.17, West Virginia Rule 8.3(d), and Wisconsin Rule 8.3(c)(2). While many states hold that participant in a lawyer assistance program do not have to report any of the participant’s substance abuse or may even be barred from doing so, attorneys outside the program who become aware of fellow attorneys participating in the program, from a non-privileged source, may be required to report those attorneys to the disciplinary board. As long as an attorney runs the risk of the state bar discovering the attendance in a voluntary substance abuse program, the attorney will be less likely to enter into the program. State bars should consider adopting a rule that no attorneys are required to report suspected substance abuse of an attorney while they know the attorney is participating in a state bar approved treatment program. Such a rule will insure confidentially as long as the person is participating in the program. If the person fails to complete the program, the program itself can them turn the attorney over to disciplinary agency.

In addition to the above preliminary draft for law firms and legal departments, on June 13, 1990, the ABA’s Commission on Impaired Attorneys issued a report to the House of Delegates regarding assistance programs operated by state and local bar association. The ABA recommended in this report that:

“The American Bar Association approve the guiding principles set forth below to assist state and local bar association in the development and maintenance of effective programs to identify and assist lawyers impaired by alcoholism and other substance abuse.

1. A state-wide lawyer assistance program should be established and supported as a standing committee of the bar.

2. The confidentially of those who seek help from a lawyer assistance program must be maintained through a rule of court or a legislative act.

3. Members of the profession who serve in lawyers assistance programs should be immune from civil liability,

4. Strong, but not exclusive, ties with the recovering community should be maintained.

5. Strong working relationships should be maintained between state and local programs and their sponsoring organizations.

6. Monitoring programs should be created to insure that all attorneys comply with any term of probation and to assist them in their recovery and return to practice.

7. Disciplinary agencies should establish and maintain a system for the referral of lawyers with substance abuse problems to the substance abuse program.

8. An educational element should be developed to inform the public, the judiciary, the bar, law students and the disciplinary agencies of the assistance that is available for those in need.

9. A substance abuse lecture should be part of the continuing legal education of each bar and the curriculum of each law school.

10. A periodic review of the program should be accomplished.”

The ABA had created this Commission in 1988 when the scope of impaired attorneys was finally recognized. The Commission was charged with the responsibility of investigating and making recommendations for the identification and treatment of an association wide treatment program for impaired attorneys and other legal professionals.

The most important recommendation of the Commission is that state-wide lawyer assistance programs be developed. The purpose of such a program should be directed towards fostering recovery rather than punishment for prior actions of the impaired attorneys during periods of their impairment. The most important aspect of the program, as seem by the Commission, should be confidentially. Confidentially, would run counter to the duty of attorneys to report suspected substance abuse to disciplinary agencies. nevertheless, the Commission concluded that confidentially was absolutely necessary for the success of any such program. Without such confidentially, attorneys would be reluctant to voluntarily enter into the state program because they could be subject to immediate disciplinary action. Without such confidentially, impaired attorneys seeking treatment would turn to outside treatment organization who not be able to able to function as well as a state bar organization. State bar organizations would have attorney volunteers, much like Concerned Lawyers, Inc., in Colorado, who would assist the attorney in keeping the office open during the period of rehabilitation. Organizations like Cocaine Anonymous, Narcotics Anonymous, Alcoholics Anonymous, would not have those types of volunteers available to help the impaired attorney. A comparison of the effectiveness of confidentially to achieving a desired result is that of the law, in many states, that a doctor must report a pregnant mother of drugs found in her system. When such drugs are found, the mother is subject to prosecution for child endangerment. The results of these laws is that mothers, who have used drugs, are refusing to get basic prenatal care for fear of their drug use will be discovered. This conduct has translated into a huge rise of miscarriages or child defects which could have been prevented with basis prenatal care.

By infringing on the mother’s expectation of privacy to help the child of a drug using mother, the government has, in reality, increased the risk of a different type of injury. The Commission recognizes that the lack of confidentially could result in an impaired attorney trying to keep an office open alone while seeking treatment. These additional pressures could on the impaired attorney trying to both at the same time could result in inadvertent acts of malpractice being committed.

The Commission recognizes that attorneys assisting impaired attorneys in a state program be immune from civil liability. This is an important recommendation because the value of a state bar program over that of a general treatment program is the assistance which other attorneys to offer an attorney so as to keep the office open or to avoid committing malpractice while the attorney is undergoing treatment. This recommendation recognizes that it is very difficult to get volunteer attorneys willing to assist impaired attorneys, especially when the volunteer attorney might be sued b for malpractice as a result of assisting the impaired attorney. There are few attorneys who would be willing to volunteer the time necessary to effectively assist an impaired attorney if, by doing so, they become exposed to malpractice liability to the clients’ of that attorney.

The Commission recognizes that any state or local bar program should be dedicated to providing a high standard of quality in its assistance. Towards that end, the program should be develop a close working relationship with the sponsoring organizations. An important aspect of any attorney assistance program is to inform both the public and its attorneys that the program exist. In 1988, a survey of Texas attorneys disclosed, for instance, that 73% of its members did not know that the state bar had such a program. It makes no sense to have an attorney assistance program if no one knows that it exists or how to access it.

When attorneys are referred to the assistance program as a condition to keeping their license as a result of disciplinary action, at this point there is no need for confidentiality between the program and the disciplinary agency. In fact, as a condition to the attorney’s keeping of the bar license the attorney must complete the program. It is therefore recognized that in such instances that the an effective method of monitoring the attorney’s progress is needed. In addition, it is understood that the attorney’s progress in overcoming the substance abuse should be reported to the disciplinary agency so that compliance with the disciplinary order can be ascertained.

The Commission recommended that periodic reviews be undertaken on each bar supported assistance program to assure that it is being conducted in conformity with the recommendations set forth in the

Commission’s report. Most of the recommendations of the Commission have been adopted by state bars in their lawyer assistance programs. The most controversial aspect of the proposal is that confidentially. Not all state bars have granted confidentially to their programs. in such state bars, an attorney’s entrance into a program will be reported to the disciplinary agency of the state bar. The disciplinary agency may then either investigate the attorney or just keep track of the attorney’s progress. The problem with this situation is that the state bar can decide, at any time, that the attorney poses a risk to his or her client and step in to temporarily close the office. For this reason, as stated above, many impaired attorneys in states where the confidentially is not guaranteed will not seek assistance from the state bar and choose either to go it alone or seek assistance form an outside agency. In either event, the state bar is without input in the treatment of the individual and has no control over the quality of assistance for which the impaired attorney is receiving or the effectiveness of the program for which the impaired attorney is enrolled.

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